EX 4.13
================================================================================
KB HOME,
Company
and
THE GUARANTORS PARTY HERETO,
Guarantors
to
[---------------],
Trustee
---------------
SUBORDINATED INDENTURE
---------------
Dated as of [-],[-]
Subordinated Debt Securities
================================================================================
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
------------------------- -----------------
Section 310(a)(1) ................................................. 607
(a)(2) ................................................. 607
(b) ................................................. 608
Section 312(a) ................................................. 701
(b) ................................................. 702
(c) ................................................. 702
Section 313(a) ................................................. 703
(b)(2) ................................................. 703
(c) ................................................. 703
(d) ................................................. 703
Section 314(a) ................................................. 704
(c)(1) ................................................. 102
(c)(2) ................................................. 102
(e) ................................................. 102
(f) ................................................. 102
Section 316(a) (last sentence)................................................. 101
(a)(1)(A) ................................................. 502, 512
(a)(1)(B) ................................................. 513
(b) ................................................. 508
Section 317(a)(1) ................................................. 503
(a)(2) ................................................. 504
(b) ................................................. 1003
Section 318(a) ................................................. 108
----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions............................................................................... 1
Section 102. Compliance Certificates and Opinions...................................................... 17
Section 103. Form of Documents Delivered to Trustee.................................................... 17
Section 104. Acts of Holders........................................................................... 18
Section 105. Notices, etc. to Trustee, Company and Guarantors.......................................... 20
Section 106. Notice to Holders of Securities; Waiver................................................... 20
Section 107. Language of Notices....................................................................... 21
Section 108. Conflict with Trust Indenture Act......................................................... 21
Section 109. Effect of Headings and Table of Contents.................................................. 21
Section 110. Successors and Assigns.................................................................... 21
Section 111. Separability Clause....................................................................... 21
Section 112. Benefits of Indenture..................................................................... 21
Section 113. Governing Law............................................................................. 22
Section 114. Legal Holidays............................................................................ 22
Section 115. Counterparts.............................................................................. 22
Section 116. Judgment Currency......................................................................... 22
Section 117. Extension of Payment Dates................................................................ 23
Section 118. Immunity of Stockholders, Directors, Officers and Agents of the Company................... 23
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally........................................................................... 23
Section 202. Form of Trustee's Certificate of Authentication........................................... 24
Section 203. Securities in Global Form................................................................. 24
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series...................................................... 25
Section 302. Currency; Denominations................................................................... 30
Section 303. Execution, Authentication, Delivery and Dating............................................ 30
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(Continued)
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Section 304. Temporary Securities...................................................................... 31
Section 305. Registration, Transfer and Exchange....................................................... 32
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.......................................... 36
Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved ............................................................. 37
Section 308. Persons Deemed Owners..................................................................... 39
Section 309. Cancellation.............................................................................. 39
Section 310. Computation of Interest................................................................... 40
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge................................................................ 40
Section 402. Defeasance and Covenant Defeasance........................................................ 42
Section 403. Application of Trust Money................................................................ 47
Section 404. Reinstatement............................................................................. 47
ARTICLE FIVE
REMEDIES
Section 501. Events of Default......................................................................... 47
Section 502. Acceleration of Maturity; Rescission and Annulment........................................ 50
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee........................... 51
Section 504. Trustee May File Proofs of Claim.......................................................... 52
Section 505. Trustee May Enforce Claims without Possession of Securities or Coupons.................... 53
Section 506. Application of Money Collected............................................................ 53
Section 507. Limitations on Suits...................................................................... 53
Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts ....................................................................... 54
Section 509. Restoration of Rights and Remedies........................................................ 54
Section 510. Rights and Remedies Cumulative............................................................ 54
Section 511. Delay or Omission Not Waiver.............................................................. 55
Section 512. Control by Holders of Securities.......................................................... 55
Section 513. Waiver of Past Defaults................................................................... 55
Section 514. Waiver of Usury, Stay or Extension Laws................................................... 56
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TABLE OF CONTENTS
(Continued)
PAGE
Section 515. Undertaking for Costs..................................................................... 56
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee................................................................. 57
Section 602. Notice of Defaults........................................................................ 58
Section 603. Not Responsible for Recitals or Issuance of Securities.................................... 58
Section 604. May Hold Securities....................................................................... 58
Section 605. Money Held in Trust....................................................................... 59
Section 606. Compensation and Reimbursement............................................................ 59
Section 607. Corporate Trustee Required; Eligibility................................................... 60
Section 608. Resignation and Removal; Appointment of Successor......................................... 60
Section 609. Acceptance of Appointment by Successor.................................................... 62
Section 610. Merger, Conversion, Consolidation or Succession to Business............................... 63
Section 611. Appointment of Authenticating Agent....................................................... 63
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
Section 701. Company to Furnish Trustee Names and Addresses of Holders................................. 65
Section 702. Preservation of Information; Communications to Holders.................................... 65
Section 703. Reports by Trustee........................................................................ 66
Section 704. Reports by Company and the Guarantors..................................................... 66
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms......................... 67
Section 802. Successor Person Substituted for Company or Guarantor..................................... 68
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders........................................ 69
Section 902. Supplemental Indentures with Consent of Holders........................................... 71
Section 903. Execution of Supplemental Indentures...................................................... 72
Section 904. Effect of Supplemental Indentures......................................................... 73
Section 905. Reference in Securities to Supplemental Indentures........................................ 73
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TABLE OF CONTENTS
(Continued)
PAGE
Section 906. Conformity with Trust Indenture Act....................................................... 73
Section 907. Subordination Unimpaired.................................................................. 73
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional Amounts............................ 73
Section 1002. Maintenance of Office or Agency........................................................... 73
Section 1003. Money for Securities Payments to Be Held in Trust......................................... 75
Section 1004. Additional Amounts........................................................................ 76
Section 1005. Corporate Existence....................................................................... 77
Section 1006. Maintenance of Properties................................................................. 78
Section 1007. Payment of Taxes and Other Claims......................................................... 78
Section 1008. Waiver of Certain Covenants............................................................... 78
Section 1009. Company Statement as to Compliance........................................................ 78
Section 1010. Guarantors' Statement as to Compliance.................................................... 79
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.................................................................. 79
Section 1102. Election to Redeem; Notice to Trustee..................................................... 79
Section 1103. Selection by Trustee of Securities to be Redeemed......................................... 80
Section 1104. Notice of Redemption...................................................................... 80
Section 1105. Deposit of Redemption Price............................................................... 82
Section 1106. Securities Payable on Redemption Date..................................................... 82
Section 1107. Securities Redeemed in Part............................................................... 83
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.................................................................. 84
Section 1202. Satisfaction of Sinking Fund Payments with Securities..................................... 84
Section 1203. Redemption of Securities for Sinking Fund................................................. 85
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.................................................................. 85
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TABLE OF CONTENTS
(Continued)
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ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.................................................................. 86
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called................................................. 86
Section 1502. Call, Notice and Place of Meetings........................................................ 86
Section 1503. Persons Entitled to Vote at Meetings...................................................... 87
Section 1504. Quorum; Action............................................................................ 87
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings....................... 88
Section 1506. Counting Votes and Recording Action of Meetings........................................... 89
ARTICLE SIXTEEN
GUARANTEE
Section 1601. Unconditional Guarantee................................................................... 89
Section 1602. Limitation of the Guarantors' Liability................................................... 90
Section 1603. Effectiveness; No Termination............................................................. 91
Section 1604. Waiver of Notices......................................................................... 91
Section 1605. Subrogation............................................................................... 91
Section 1606. Waiver of Suretyship Defenses............................................................. 91
Section 1607. Exhaustion of Other Remedies Not Required................................................. 92
Section 1608. Reinstatement............................................................................. 93
Section 1609. Subordination............................................................................. 93
Section 1610. Information............................................................................... 93
Section 1611. Acceleration.............................................................................. 93
Section 1612. Condition of the Company.................................................................. 94
Section 1613. Release of Guarantors..................................................................... 94
Section 1614. Additional Guarantors..................................................................... 94
Section 1615. Definition of "guarantee"................................................................. 95
Section 1616. Evidence of Guarantees.................................................................... 95
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TABLE OF CONTENTS
(Continued)
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ARTICLE SEVENTEEN
SUBORDINATION
Section 1701. Securities and Coupons Subordinate to Senior Indebtedness................................. 96
Section 1702. Payment Over of Proceeds Upon Dissolution, Etc............................................ 96
Section 1703. Acceleration of Securities................................................................ 98
Section 1704. Default on Senior Indebtedness............................................................ 98
Section 1705. Payment Permitted if No Default........................................................... 99
Section 1706. Subrogation to Rights of Holders of Senior Indebtedness................................... 99
Section 1707. Provisions Solely to Define Relative Rights.............................................. 100
Section 1708. Trustee to Effectuate Subordination...................................................... 100
Section 1709. No Waiver of Subordination Provisions.................................................... 101
Section 1710. Notice to Trustee........................................................................ 101
Section 1711. Reliance on Judicial Order or Certificate of Liquidation Agent........................... 102
Section 1712. Trustee Not Fiduciary for Holders of Senior Indebtedness................................. 102
Section 1713. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights..... 103
Section 1714. Article Seventeen Applicable to Paying Agents............................................ 103
ARTICLE EIGHTEEN
SUBORDINATION OF GUARANTEES
Section 1801. Agreement to Subordinate................................................................. 103
Section 1802. Payment Over of Proceeds Upon Dissolution, Etc........................................... 105
Section 1803. Acceleration of Securities............................................................... 106
Section 1804. Default on Guarantor Senior Indebtedness................................................. 107
Section 1805. Payment Permitted if No Default.......................................................... 108
Section 1806. Subrogation.............................................................................. 108
Section 1807. Provisions Solely to Define Relative Rights.............................................. 108
Section 1808. Trustee to Effectuate Subordination...................................................... 109
Section 1809. No Waiver of Subordination Provisions.................................................... 109
Section 1810. Notice to Trustee........................................................................ 110
Section 1811. Reliance on Judicial Order or Certificate of Liquidation Agent........................... 111
Section 1812. Trustee Not Fiduciary for Holders of Guarantor Senior Indebtedness....................... 111
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(Continued)
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Section 1813. Rights of Trustee as Holder of Guarantor Senior Indebtedness; Preservation of Trustee's
Rights .................................................................................. 112
Section 1814. Article Eighteen Applicable to Paying Agents............................................. 112
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SUBORDINATED INDENTURE, dated as of [-],[-] (the "Indenture"), among KB
HOME, a Delaware corporation (hereinafter called the "Company"), having its
principal executive office located at 00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, the Guarantors (as defined herein), and [_________], a
[_________] (hereinafter called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done. In addition, each
Guarantor whose name appears on the signature pages to this Indenture has duly
authorized, and each Person who shall, after the date of this Indenture, become
a Guarantor hereunder will duly authorize, the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of each
Guarantor whose name appears on the signature pages to this Indenture has been
done and all things necessary to make this Indenture a valid agreement of each
Person who shall, after the date of this Indenture, become a Guarantor hereunder
will be done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
1
(2) all other terms used herein which are defined in the Trust
Indenture Act either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein", "hereof", "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision;
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not
both");
(6) provisions apply to successive events and transactions;
(7) the term "merger" includes a statutory share exchange and
the terms "merge" and "merged" have correlative meanings;
(8) the masculine gender includes the feminine and the neuter;
and
(9) references to agreements and other instruments include
subsequent amendments and supplements thereto.
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act", when used with respect to any Holders, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
this Indenture or by any Security, or by the terms of any Security established
pursuant to Section 301, under circumstances specified herein or therein, to be
paid by the Company in respect of certain taxes, duties, levies, imposts,
assessments or other governmental charges imposed on Holders specified herein or
therein.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are not Business Days in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
2
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same place meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bankruptcy Laws" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state law for the relief of debtors.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder. The term "board of directors" means, as used
other than in Article Seventeen and Article Eighteen and in any defined terms
defined for use in Article Seventeen or Article Eighteen, with respect to any
corporation, the board of directors of such corporation and does not include
committees of the board of directors.
"Board Resolution" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, delivered to the Trustee.
"Business Day" means, unless otherwise specified with respect to the
Securities of any series pursuant to Section 301, any day other than a Saturday,
Sunday or other day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close; provided
that such term shall mean, when used with respect to any payment of principal
of, or premium or interest, if any, on, or Additional Amounts with respect to,
the Securities of any series to be made at any Place of Payment for such
Securities, unless otherwise specified pursuant to Section 301 with respect to
such Securities, any day other than a Saturday, Sunday or other day on which
banking institutions in such Place of Payment are authorized or obligated by
law, regulation or executive order to close. Notwithstanding the foregoing, the
term "Business Day", as used in Article Seventeen and Article Eighteen and in
any defined terms defined expressly for use in Article Seventeen or Article
Eighteen, means, with respect to any Security, a day that in the city (or in any
of the cities, if more than one) in which amounts are payable, as specified in
the form of such Security or in or pursuant to this Indenture, is not a day on
which banking institutions are authorized or required by law or regulation to
close.
"Capital Lease" means, with respect to any Person at any date, any
lease of property the liability under which, in accordance with generally
accepted accounting principles, is required to be capitalized on such Person's
balance sheet or for which the amount of the liability thereunder is required to
be disclosed in a note to such balance sheet.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) in or of such Person,
including, without limitation, common stock, preferred stock, limited liability
company interests and partnership and joint venture interests; provided that,
notwithstanding the foregoing, the term "Capital Stock", as used in the proviso
to the definition of "Common Stock", of any Person means any and all shares,
interests, participations or other equivalents
3
(however designated) in or of the equity (which includes, but is not limited to,
common stock, preferred stock and partnership and joint venture interests) of
such Person.
"Capitalized Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligations will be the capitalized amount thereof determined in
accordance with GAAP.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, or, if at any time after the execution of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Stock" of any Person means all Capital Stock of the Person that
is generally entitled to (1) vote in the election of directors of the Person or
(2) if the Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of the Person; provided that, notwithstanding the
foregoing, the term "Common Stock", as used in the proviso to the definition of
"Subsidiary", of any Person means all Capital Stock of such Person that is
generally entitled to: (1) vote in the election of directors of such Person or
(2) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman, the Chief Executive Officer, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community or
(ii) any currency unit or composite currency for the purposes for which it was
established.
"Corporate Trust Office" means [either (a)] the principal corporate
trust office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of original execution
of this Indenture is located at [_______________], [or (b) for purposes of
Section 1002, the principal corporate trust office of the Trustee in the Borough
of Manhattan, The City of New York in which at any particular time its corporate
trust business shall be administered in The City of New York, which office at
the date of this Indenture is located at [_______________]].
4
"Corporation" means corporations, partnerships, associations, limited
liability companies and other companies, and business trusts. The term
"corporation" means a corporation and does not include partnerships,
associations, limited liability companies or other companies or business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Credit Facility" means that certain Revolving Loan Agreement, dated as
of October 24, 2003, between the Company, the banks party thereto and Bank of
America, N.A., as Administrative Agent, Bank One, NA, as Syndication Agent,
Fleet National Bank, Credit Lyonnais New York Branch, Wachovia Bank, National
Association, KeyBank National Association and SunTrust Bank, as Documentation
Agents, and Banc of America Securities LLC, as Sole Lead Arranger and Sole Book
Manager, as the same may be amended, supplemented or modified from time to time
and including any increase in the amount of credit available thereunder.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's, CUSIP Service Bureau.
"Debt" means, with respect to any Person at any date, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person in respect of letters
of credit or other similar instruments (or reimbursement obligations with
respect thereto), (iv) all obligations of such Person to pay the deferred
purchase price of property or services, except Trade Payables, (v) all
obligations of such Person as lessee under Capital Leases, (vi) all Debt of
others for the payment of which such Person is responsible or liable as obligor
or guarantor and (vii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to any Security issuable or issued in
the form of one or more global Securities, the Person designated as depository
by the Company in or pursuant to this Indenture, and, unless otherwise provided
with respect to any Security, any successor to such Person. If at any time there
is more than one such Person, "Depository" shall mean, with respect to any
Securities, the depository which has been appointed with respect to such
Securities.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
5
"Domestic Significant Subsidiary" means, as of any date of
determination, a Significant Subsidiary (1) that is organized under the laws of
the United States of America or any state thereof or the District of Columbia
and (2) the majority of the assets of which (as reflected on a balance sheet of
such Subsidiary prepared in accordance with GAAP) is located in the United
States of America.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor thereto, in each case as amended from time to time.
"Foreign Currency" means any currency, currency unit or composite
currency issued by the government of one or more countries other than the United
States of America or by any recognized confederation or association of such
government.
"GAAP" and "generally accepted accounting principles" mean, unless
otherwise specified with respect to any series of Securities issued under this
Indenture pursuant to Section 301, such accounting principles as are generally
accepted in the United States of America as of the date or time of any
computation required hereunder; provided that, notwithstanding the foregoing,
the term "generally accepted accounting principles", as used in Article
Seventeen and Article Eighteen and in the definition of "Capital Lease", means
generally accepted accounting principles as in effect and implemented by the
Company from time to time.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on the relevant Security or any
Additional Amounts in respect thereof shall be payable, in each case where the
payment or payments thereunder are supported by the full faith and credit of
such government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Guarantee" or "Guarantees" means, with respect to any Guarantor, or
Guarantors, the guarantee or guarantees, as the case may be, of such Guarantor
or Guarantors, as the case may be, set forth in Article Sixteen.
6
"Guaranteed Obligations" has the meaning specified in Section 1601.
"Guarantor" or "Guarantors" means (1) KB HOME Phoenix Inc., an Arizona
corporation, KB HOME Coastal Inc., a California corporation, KB HOME North Bay
Inc., a California corporation, KB HOME South Bay Inc., a California
corporation, KB HOME Greater Los Angeles Inc., a California corporation, KB HOME
Colorado Inc., a Colorado corporation, KB HOME Nevada Inc., a Nevada
corporation, and KB HOME Lone Star LP, a Texas limited partnership; and (2) any
Person that becomes a guarantor of Securities under this Indenture pursuant to
Section 1614 or otherwise enters into a supplemental indenture pursuant to which
such Person becomes a guarantor of Securities under this Indenture, but
excluding, in each case, any Person whose Guarantee has been released pursuant
to this Indenture. If a successor Person replaces any of the Guarantors named in
clause (1) of the preceding sentence in accordance with the provisions of this
Indenture, the term "Guarantor" shall thereafter include such successor instead
of the Guarantor originally named in such clause (1).
"Guarantor's Board of Directors" means, with respect to any Guarantor,
the board of directors of such Guarantor or any committee of that board duly
authorized to act generally or in any particular respect for such Guarantor
hereunder or, if such Guarantor is not a corporation, the governing body that
controls the management and policies of such Guarantor, or, if such Guarantor is
a partnership or limited liability company, the governing body that controls the
management and policies of its direct or indirect general partner or managing
member, as the case may be, or in each case any committee of any such governing
body duly authorized to act generally or in any particular respect for such
Guarantor hereunder.
"Guarantor's Board Resolution" means, with respect to any Guarantor, a
copy of one or more resolutions, certified by the Secretary or an Assistant
Secretary of the Company or such Guarantor (or, if such Guarantor does not have
a Secretary or an Assistant Secretary, by an appropriate officer of such
Guarantor or, if such Guarantor is a partnership or limited liability company,
the Secretary, Assistant Secretary or other appropriate officer of the direct or
indirect general partner or managing member, as the case may be, of such
Guarantor) to have been duly adopted by such Guarantor's Board of Directors and
to be in full force and effect on the date such certification is delivered to
the Trustee. In the event that any provision of this Indenture shall call for
the delivery of a Board Resolution and one or more Guarantor's Board Resolutions
or for the delivery of two or more Guarantor's Board Resolutions in connection
with any matter, then it shall not be necessary that the Company and all such
Guarantors, as the case may be, deliver separate certified resolutions but,
instead, such certifications and resolutions may be combined into a single
document.
"Guarantor's Officers' Certificate" means, with respect to any
Guarantor, a certificate signed by any two officers of such Guarantor that
complies with the requirements of Section 314(e) of the Trust Indenture Act. In
the event that any provision of this Indenture shall call for the delivery of an
Officers' Certificate and one or more Guarantor's Officers' Certificates or for
the delivery of two or more Guarantor's Officers' Certificates in connection
with any matter, then it is not necessary that the Company and all such
Guarantors, as the case may be, deliver separate certificates but, instead, such
certificates may be combined into a single document.
7
"Guarantor Request" and "Guarantor Order" mean, respectively, a written
request or order, as the case may be, signed in the name of a Guarantor by two
of its officers or, if such Guarantor is a partnership or limited liability
company, by two officers of its direct or indirect general partner or managing
member, as the case may be, and delivered to the Trustee.
"Guarantor Senior Indebtedness" has the meaning specified in Section
1801.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"incur" means, as used in Article Seventeen and Article Eighteen and
in any defined terms defined expressly for use in Article Seventeen or Article
Eighteen, to, directly or indirectly, create, incur, issue, assume, guarantee,
extend the maturity of or in any other manner become liable with respect to, or
otherwise become responsible for the payment of any Debt.
"Indebtedness" means without duplication, with respect to any Person,
(1) any liability of such Person (a) for borrowed money, or (b) evidenced by a
bond, note, debenture or similar instrument (including a purchase money
obligation) given in connection with the acquisition of any businesses,
properties or assets of any kind (other than a trade payable or a current
liability arising in the ordinary course of business), or (c) for the payment of
money relating to a Capitalized Lease Obligation, or (d) for all Redeemable
Capital Stock valued at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; (2) any liability of others
described in the preceding clause (1) that such Person has guaranteed or that is
otherwise its legal liability; (3) all Indebtedness referred to in (but not
excluded from) clauses (1) and (2) above of other Persons and all dividends of
other Persons, the payment of which is secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Security Interest upon or in property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness; and (4) any
amendment, supplement, modification, deferral, renewal, extension, refinancing
or refunding of any liability of the types referred to in clauses (1), (2) and
(3) above.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and, with respect to any Security, by the terms and provisions of such Security
and any Coupon appertaining thereto established pursuant to Section 301 (as such
terms and provisions may be amended pursuant to the applicable provisions
hereof); provided, however, that, if at any time more than one Person is acting
as Trustee under this instrument, "Indenture" shall mean, with respect to any
one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of those
particular series of Securities for which such Person is Trustee established
pursuant to Section 301, exclusive, however, of any provisions or terms which
relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted.
8
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or other similar encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including, without limitation, any conditional sale or other
title retention agreement and any lease in the nature thereof, any option or
other agreement to sell, and any filing of, or agreement to give, any financing
statement under the Uniform Commercial Code (or equivalent statute) of any
jurisdiction).
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture or such Security, whether
at the Stated Maturity or by declaration of acceleration, upon redemption at the
option of the Company, upon repurchase or repayment at the option of the Holder
or otherwise, and includes a Redemption Date for such Security and a date fixed
for the repurchase or repayment of such Security at the option of the Holder.
"New York Banking Day" has the meaning specified in Section 116.
"Non-Recourse Indebtedness" means Indebtedness secured by a Security
Interest in or on property to the extent that the liability for such
Indebtedness (and any premium, if any, and interest thereon) is limited to the
security of such property without liability on the part of the Company or any of
its Subsidiaries for any deficiency, including liability by reason of any
agreement by the Company or any of its Subsidiaries to provide additional
capital or maintain the financial condition of or otherwise support the credit
of the Person incurring such Indebtedness, but provided that obligations or
liabilities of the Company or its Subsidiaries solely for indemnities, covenants
or breaches of warranties, representations or covenants in respect of any
Indebtedness will not prevent such Indebtedness from being classified as
Non-Recourse Indebtedness.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"officer" means, with respect to any Person that is not a corporation,
any officer of such Person or, if such Person does not have the requisite
officer contemplated by this Indenture, any other employee of such Person whose
responsibilities are generally similar to those of such
9
officer of a corporation and, in the case of a partnership or limited liability
company, also includes an officer of its direct or indirect general partner or
managing member, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman, the
Chief Executive Officer, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or a Guarantor or other counsel who shall
be reasonably acceptable to the Trustee, that, if required by the Trust
Indenture Act, complies with the requirements of Section 314(e) of the Trust
Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for an amount less than the principal face amount
thereof to be due and payable upon declaration of acceleration pursuant to
Section 502.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the
Trustee or the Security Registrar or delivered to the
Trustee or the Security Registrar for cancellation;
(b) any such Security for whose payment at the Maturity
thereof money in the necessary amount (or, to the
extent that such Security is payable at such Maturity
in shares of Common Stock or other securities or
property, Common Stock or such other securities or
property in the necessary amount, together with, if
applicable, cash in lieu of fractional shares or
securities) has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the
Trustee or any Paying Agent (other than the Company
or a Guarantor) in trust or set aside and segregated
in trust by the Company or a Guarantor (if the
Company shall act as its own, or authorizes a
Guarantor to act as, Paying Agent) for the Holders of
such Securities and any Coupons appertaining thereto;
provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company
has effected defeasance or covenant defeasance
pursuant to Section 402, except to the extent
provided in Section 402;
(d) any such Security which has been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, unless there
shall have been
10
presented to the Trustee proof satisfactory to it
that such Security is held by a bona fide purchaser
in whose hands such Security is a valid obligation of
the Company; and
(e) any such Security converted or exchanged as
contemplated by this Indenture into Common Stock or
other securities or property, if the terms of such
Security provide for such conversion or exchange
pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency that may be
counted in making such determination and that shall be deemed Outstanding for
such purposes shall be the Dollar equivalent, determined on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in (i) above) of
such Security, and (iv) Securities owned by the Company or a Guarantor or any
other obligor upon the Securities or any of the Guarantees or any Affiliate of
the Company or a Guarantor or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in making any such determination or relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which shall have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee (A) the pledgee's right so to act with respect to such Securities and
(B) that the pledgee is not the Company or a Guarantor or any other obligor upon
the Securities or any Coupons appertaining thereto or any of the Guarantees or
an Affiliate of the Company or a Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" and "person" mean any individual, Corporation, joint venture,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof. Notwithstanding the foregoing
provisions of this paragraph, the term "Person", as used in Article Seventeen
and Article Eighteen, in the definitions of "Capital Lease", "Debt" and "Trade
Payables" and in the proviso to the definitions of "Capital Stock", "Common
Stock" and "Subsidiary", means any individual, corporation, partnership, joint
venture, association, joint
11
stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"principal", whenever used, in Article Seventeen and Article Eighteen
and in any defined terms defined for use in Article Seventeen or Article
Eighteen, with reference to the Securities or any portion thereof, shall be
deemed to include "and premium, if any".
"Redeemable Capital Stock" means any Capital Stock of any Person that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or otherwise, (1) is required or upon the happening of an event
or passage of time would be required to be redeemed on or prior to the final
stated maturity of the Securities of any series Outstanding under this
Indenture, or (2) is redeemable at the option of the holder thereof at any time
prior to such final stated maturity or (3) is convertible into or exchangeable
for debt securities at any time prior to such final stated maturity.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the record date for the
payment of such interest.
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer or employee of the Trustee to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject. Notwithstanding the foregoing, the term "Responsible Officer", as used
in Article Seventeen and Article Eighteen and in any defined terms defined
expressly for use in
12
Article Seventeen or Article Eighteen, when used with respect to the Trustee
means the chairman of its board of directors, any vice chairman of its board of
directors, the chairman of its trust committee, the chairman of its executive
committee, any vice chairman of its executive committee, the president, any vice
president (whether or not designated by numbers or words added before or after
the title "vice president"), the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor thereto, in each case as amended from time to time.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Interest" means any mortgage, pledge, lien, encumbrance or
other security interest.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" has the meaning specified in Section 1701.
"Significant Subsidiary" means any Subsidiary that is a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X under the Securities Act
and the Exchange Act (as such Regulation S-X was in effect on June 1, 1996).
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subject Notes" means, with respect to any series of Securities,
Securities of any series.
13
"Subsidiary" means any (1) corporation the majority of the Common Stock
of which is owned, directly or indirectly, by the Company or one or more of its
Subsidiaries and (2) entity other than a corporation the majority of the Common
Stock of which is owned, directly or indirectly, by the Company or one or more
of its Subsidiaries; provided that, notwithstanding the foregoing, the term
"Subsidiary", as used in Article Seventeen and Article Eighteen and in the
definitions of "Senior Indebtedness" and "Guarantor Senior Indebtedness", of any
Person means: (1) any corporation at least a majority of the aggregate voting
power of the Common Stock of which is owned by such Person, directly or through
one or more other Subsidiaries of such Person, and (2) any entity other than a
corporation at least a majority of the Common Stock of which is owned by such
Person, directly or through one or more other Subsidiaries of such Person.
"Substitute Credit Facility" means any credit facility (as the same may
be amended, supplemented or modified from time to time) of the Company which is
created subsequent to December 18, 2003 and which replaces all or part of the
Credit Facility or a Substitute Credit Facility (and which may provide for an
increase in the amount of credit available thereunder), so long as the Company
is a borrower under such Substitute Credit Facility.
"Trade Payables" means, with respect to any Person, accounts payable or
any other indebtedness or monetary obligations to trade creditors created or
assumed by such Person in the ordinary course of business in connection with the
obtaining of materials or services.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of such series.
"United States" means the United States of America (including the
states thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction; and the term "United States of
America" means the United States of America.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
14
"Vice President", when used with respect to the Company, any Guarantor
or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "Vice President".
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this
Indenture, upon any application or request by the Company or a Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents or any of them is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a Guarantor
may be based, insofar as it relates to legal matters, upon an Opinion of
Counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the opinion with respect to the matters upon which his certificate or
opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or such Guarantor, a
governmental official or officers or any other Person or Persons, stating that
the information with respect to such factual matters is in the possession of the
Company or such Guarantor unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate, opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be made,
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If, but only if, Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or
15
taken by Holders of Securities of such series may, alternatively, be embodied in
and evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company and/or the Guarantors. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 315 of the Trust Indenture Act) conclusive in favor of the
Trustee, the Company and the Guarantors and any agent of the Trustee, the
Company or any Guarantor, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a global Security, may make, give or take, by a proxy or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other Act provided in or pursuant to this Indenture
or the Securities to be made, given or taken by Holders, and a Depository that
is a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such
Depository's standing instructions and customary practices.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Company and the Trustee to be satisfactory. The
Trustee, the Company and the Guarantors may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by
16
some other Person, or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding. The
ownership, principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of the commencement
and the date of the termination of holding the same may also be proved in any
other manner which the Company, and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
Section 105. Notices, etc. to Trustee, Company and Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Company or a Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, or
(2) the Company or a Guarantor by the Trustee or any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company or to such Guarantor in care of the
Company, as the case may be, in each case addressed to the attention of
the Company's Treasurer at the address of the Company's principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
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Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the
18
Company so elects, any published notice may be in an official language of the
country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or any
Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not, to the fullest extent
permitted by law, in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, the holders of
Senior Indebtedness or Guarantor Senior Indebtedness, any Security Registrar,
any Paying Agent and their successors hereunder and the Holders of Securities or
Coupons, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 113. Governing Law.
This Indenture, the Securities, the Guarantees and any Coupons shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into and, in each case,
performed in said State.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of, or any other day on which a payment is due with respect to, any
Security shall be a day which is not a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon or in the Board
Resolution, Officers' Certificate or supplemental indenture establishing the
terms of any Security that specifically states that such provision shall apply
in lieu hereof) payment need not be made at
19
such Place of Payment on such date, but such payment may be made on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, at the Stated Maturity
or Maturity or on any such other payment date, as the case may be, and no
interest shall accrue on the amount so payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or other payment date, as the case may be, to the next succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company and the Guarantors agree, jointly and severally, to the
fullest extent that they may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of, or premium or interest, if any, or
Additional Amounts on the Securities of any series (the "Required Currency")
into a currency in which a judgment will be rendered (the "Judgment Currency"),
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
preceding that on which a final unappealable judgment is given and (b) their
obligations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with clause (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive
order to be closed. The provisions of this Section 116 shall not be applicable
with respect to any payment due on a Security which is payable in Dollars.
Section 117. Extension of Payment Dates.
In the event that (i) the terms of any Security or Coupon appertaining
thereto established in or pursuant to this Indenture permit the Company or any
Holder thereof to extend the date on which any payment of principal of, or
premium, if any, or interest, if any, on, or Additional Amounts, if any, with
respect to such Security or Coupon is due and payable and (ii) the due date for
any such payment shall have been so extended, then all references herein to the
Stated Maturity of such payment (and all references of like import) shall be
deemed to refer to the date as so extended.
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Section 118. Immunity of Stockholders, Directors, Officers and Agents
of the Company.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any past, present or future stockholder
(unless such stockholder is itself the Company or a Guarantor), employee,
officer or director, as such, of the Company, any Guarantor or of any
predecessor or successor, either directly or through the Company or any
Guarantor or any predecessor or successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders and as part of
the consideration for the issue of the Securities.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officer of the Company executing
such Security or Coupon as evidenced by the execution of such Security or
Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officer of the Company executing such
Securities or Coupons, as evidenced by the execution of such Securities or
Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
21
[_________],
as Trustee
By: _________________________________________
Authorized Signatory
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in global form. If Securities
of a series shall be issuable in temporary or permanent global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon or reflected on the books and records of the Trustee and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or pursuant to Section 301
with respect to such Security or in the Company Order to be delivered pursuant
to Section 303 or 304 with respect thereto. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in global form in the manner and upon instructions given by the Person
or Persons specified therein or pursuant to Section 301 with respect to such
Security or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Company with respect to a Security in global form shall be in writing but
need not be accompanied by or contained in an Officers' Certificate and need not
be accompanied by an Opinion of Counsel. Notwithstanding the foregoing
provisions of this paragraph, in the event a global Security is exchangeable for
definitive Securities as provided in Section 305, then, unless otherwise
provided in or pursuant to this Indenture with respect to the Securities of such
series, the Trustee shall deliver and redeliver such global Security to the
extent necessary to effect such exchanges, shall endorse such global Security to
reflect any decrease in the principal amount thereto resulting from such
exchanges and shall take such other actions, all as contemplated by Section 305.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
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ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to one or more Board
Resolutions and set forth in an Officers' Certificate (in which case each
Guarantor shall deliver a Guarantor's Board Resolution and a Guarantor's
Officers' Certificate wherein such Guarantor shall approve the issuance, form
and terms of such Securities and shall confirm its Guarantee of such Securities
and any Coupons appertaining thereto and all related Guaranteed Obligations), or
established in one or more indentures supplemental hereto, prior to the issuance
of any Securities of a series,
(1) the title of the Securities of such series;
(2) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 304, 305, 306, 905
or 1107, upon repayment in part of any Security of such series pursuant
to Article Thirteen or upon surrender in part of any Security for
conversion or exchange into Common Stock or other securities or
property pursuant to its terms), and if such series may be reopened
from time to time for the issuance of additional Securities of such
series or to establish additional terms of such series;
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form and
(i) whether such Securities are to be issued in temporary or permanent
global form or both, (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Xxxxxxx 000, (xxx) the
name of the Depository with respect to any such global Security and
(iv) if applicable and in addition to the Persons specified in Section
305, the Person or Persons who shall be entitled to make any
endorsements on any such global Security and to give the instructions
and take the other actions with respect to such global Security
contemplated by the first paragraph of Section 203;
23
(5) if any of such Securities are to be issuable as Bearer
Securities, the date as of which any such Bearer Security shall be
dated (if other than the date of original issuance of the first of such
Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal
and premium, if any, of such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day
months;
(9) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange,
any of such Securities may be surrendered for conversion or exchange
and notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served;
(10) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(11) if the Company is obligated to redeem or purchase any of
such Securities pursuant to any sinking fund or analogous provision or
at the option of any Holder thereof and, if so, the date or dates on
which, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities
so redeemed or purchased;
24
(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations
of $1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into and/or exchangeable for Common Stock or other securities or
property, and if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any deletions
from or modifications or additions to this Indenture to permit or to
facilitate the issuance of such convertible or exchangeable Securities
or the administration thereof;
(14) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of
this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(17) if the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities
may be determined with reference to an index, formula or other method
or methods (which index, formula or method or methods may be based,
without limitation, on one or more Currencies, commodities, equity
indices or other indices), and, if so, the terms and conditions upon
which and the manner in which such amounts shall be determined and paid
or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company or the Guarantors with
respect to any of such Securities or related Guarantees (whether or not
such Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein), and if Section 1008 shall be
applicable with respect to any such additional covenants;
(19) if any one or more of Section 401 relating to
satisfaction and discharge, Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance
25
shall not be applicable to the Securities of such series, and any
covenants in addition to or other than those specified in Section
402(3) relating to the Securities of such series which shall be subject
to covenant defeasance, and, if the Securities of such series are
subject to repurchase or repayment at the option of the Holders thereof
pursuant to Article Thirteen, if the Company's obligation to repurchase
or repay such Securities will be subject to satisfaction and discharge
pursuant to Section 401 or to defeasance or covenant defeasance
pursuant to Section 402, and, if the Holders of such Securities have
the right to convert or exchange such Securities into Common Stock or
other securities or property, if the right to effect such conversion or
exchange will be subject to satisfaction and discharge pursuant to
Section 401 or to defeasance or covenant defeasance pursuant to Section
402, and any deletions from, or modifications or additions to, the
provisions of Article Four (including any modification which would
permit satisfaction and discharge, defeasance or covenant defeasance to
be effected with respect to less than all of the outstanding Securities
of such series) in respect of the Securities of such series;
(20) if any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(21) if any of such Securities are issuable in global form and
are to be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(22) whether and under what circumstances the Company will pay
Additional Amounts on such Securities to any holder who is a United
States Alien in respect of any tax, assessment or other government
charge and, if so, whether the Company will have the option to redeem
such Securities rather than pay such Additional Amounts, and any
similar provisions that may be applicable with respect to payments made
by the Guarantors;
(23) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities;
(24) the Person to whom any interest on any Registered
Security of such series shall be payable, if other than the Person in
whose name the Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person to
whom, any interest on any Bearer Security of such series shall be
payable, if other than upon presentation and surrender of the Coupons
appertaining thereto as they severally mature, and the extent to which,
or the manner in which, any interest payable on a temporary global
Security will be paid if other than in the manner provided in this
Indenture;
(25) any transfer restrictions applicable to the Securities of
the series; and
26
(26) any other terms of such Securities or the related
Guarantees and any deletions from or modifications or additions to this
Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest,
or method of determining the rate of interest, if any, Maturity, and the date
from which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Board Resolution,
Officers' Certificate or supplemental indenture, as the case may be, pertaining
to such series of Securities (telephonic instructions to be promptly confirmed
in writing by such person) and that such persons are authorized to determine,
consistent with such Board Resolution, Officers' Certificate or supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Board Resolution, Officers' Certificate or supplemental
indenture. All Securities of any one series need not be issued at the same time
and, if so provided by the Company as contemplated by this Section 301, a series
may be reopened from time to time without the consent of any Holders for
issuances of additional Securities of such series or to establish additional
terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to one or more Board Resolutions,
such Board Resolutions and the related Guarantor's Board Resolutions and
Guarantor's Officers' Certificates shall be delivered to the Trustee at or prior
to the delivery of the Officers' Certificate setting forth the terms of the
Securities of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities and all amounts payable by the Guarantors pursuant to
their Guarantees shall be payable in Dollars. Unless otherwise provided in or
pursuant to this Indenture, Registered Securities denominated in Dollars shall
be issuable in registered form without Coupons in denominations of $1,000 and
any integral multiple thereof, and the Bearer Securities denominated in Dollars
shall be issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established with respect
to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman,
its President or one of its Vice Presidents and by its Treasurer, one of its
Assistant Treasurers, its Secretary or one of its Assistant Secretaries and may
(but need not) have its corporate seal or a facsimile thereof reproduced
thereon. Coupons shall be executed on behalf of the Company by the
27
Chairman, the President or any Vice President of the Company. The signature of
any of these officers on the Securities or any Coupons appertaining thereto may
be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall, to the fullest extent permitted by law, bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate (together with
the related Guarantor's Board Resolutions and Guarantor's Officers'
Certificates) or supplemental indenture or indentures with respect to such
Securities referred to in Section 301 and a Company Order for the authentication
and delivery of such Securities have been delivered to the Trustee, the Trustee
in accordance with the Company Order and subject to the provisions hereof and of
such Securities shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities and any Coupons appertaining
thereto, the Trustee shall be entitled to receive, and (subject to Sections
315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in
relying upon an Opinion of Counsel to the following effect, which Opinion of
Counsel may contain such assumptions, qualifications and limitations as such
counsel shall deem appropriate:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with Sections 201
and 301 of this Indenture; and
(b) all conditions precedent set forth in Sections 201, 301
and 303 of this Indenture to the authentication and delivery of such
Securities and Coupons, if any, appertaining thereto have been complied
with and that such Securities, and Coupons, when completed by
appropriate insertions (if applicable), executed by duly authorized
officers of the Company, delivered by duly authorized officers of the
Company to the Trustee for authentication pursuant to this Indenture,
and authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium, arrangement,
fraudulent conveyance, fraudulent transfer or other similar laws
relating to or affecting creditors' rights generally, and subject to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and will entitle the
Holders thereof to the benefits of this Indenture, including the
Guarantees.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Security, but such opinion, with such modifications as counsel
shall deem appropriate, shall be delivered at or before the time of issuance of
the first Security of such series. After any such first delivery, any separate
request by
28
the Company that the Trustee authenticate Securities of such series for original
issue will be deemed to be a joint and several certification by the Company and
the Guarantors that all conditions precedent provided for in this Indenture
relating to authentication and delivery of such Securities continue to have been
complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 202 or 611 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized signatories. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306 or 307 or as may
otherwise be provided in or pursuant to this Indenture, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons appertaining
thereto then matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions set forth in this Indenture or
the provisions established pursuant to Section 301, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. Except as otherwise provided in or pursuant to this
Indenture, after the preparation of definitive Securities of the same series and
containing terms and provisions that are identical to those of any temporary
Securities, such temporary Securities shall be exchangeable for such definitive
Securities upon surrender of such temporary Securities at an Office or Agency
for such Securities, without charge to any Holder thereof. Except as otherwise
provided in or pursuant to this Indenture, upon surrender for cancellation of
any one or more temporary Securities (accompanied by any unmatured Coupons
appertaining thereto), the
29
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations of the same series and containing identical terms and provisions;
provided, however, that no definitive Bearer Security, except as provided in or
pursuant to this Indenture, shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in or pursuant to this Indenture.
Unless otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the initial Security Registrar for each series of Securities
shall be as specified in the last paragraph of Section 1002. The Company shall
have the right to remove and replace from time to time the Security Registrar
for any series of Securities; provided that no such removal or replacement shall
be effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Company and shall have accepted such
appointment. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Except as otherwise provided in or pursuant to this Indenture, upon
surrender for registration of transfer of any Registered Security of any series
at any Office or Agency for such series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same series
denominated as authorized in or pursuant to this Indenture, of a like aggregate
principal amount bearing a number not contemporaneously outstanding and
containing identical terms and provisions.
Except as otherwise provided in or pursuant to this Indenture, at the
option of the Holder, Registered Securities of any series may be exchanged for
other Registered Securities of the same series containing identical terms and
provisions, in any authorized denominations, and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at any Office or Agency
for such series. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered
30
Securities of such series containing identical terms, denominated as authorized
in or pursuant to this Indenture and in the same aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any Office or Agency
for such series, with all unmatured Coupons and all matured Coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing Coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for such
series located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such Office or Agency for
such series in exchange for a Registered Security of such series and like tenor
after the close of business at such Office or Agency on (i) any Regular Record
Date and before the opening of business at such Office or Agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such Office or Agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be
(or, if such Coupon is so surrendered with such Bearer Security, such Coupon
shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, the global Securities of any series shall be
exchangeable for definitive certificated Securities of such series only if (i)
the Depository for such global Securities notifies the Company that it is
unwilling or unable to continue as a Depository for such global Securities or at
any time the Depository for such global Securities ceases to be a clearing
agency registered as such under the Exchange Act, if so required by applicable
law or regulation, and no successor Depository for such Securities shall have
been appointed within 90 days of such notification or of the Company becoming
aware of the Depository's ceasing to be so registered, as the case may
31
be, (ii) the Company, in its sole discretion, determines that the Securities of
such series shall no longer be represented by one or more global Securities and
executes and delivers to the Trustee a Company Order to the effect that such
global Securities shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to such Securities.
If the beneficial owners of interests in a global Security are entitled
to exchange such interests for definitive Securities as the result of an event
described in clause (i), (ii) or (iii) of the preceding paragraph, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in such form and denominations as are required by or
pursuant to this Indenture, and of the same series, containing identical terms
and in aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from
time to time by the Depository (or its custodian) as shall be specified in the
Company Order with respect thereto (which the Company agrees to deliver), and in
accordance with instructions given to the Trustee and the Depository (which
instructions shall be in writing but need not be contained in or accompanied by
an Officers' Certificate or be accompanied by an Opinion of Counsel), as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such global Security to be exchanged, which (unless such
Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, and
which shall be in such denominations and, in the case of Registered Securities,
registered in such names, as shall be specified by the Depository, but subject
to the satisfaction of any certification or other requirements to the issuance
of Bearer Securities; provided, however, that no such exchanges may occur during
a period beginning at the opening of business 15 days before any selection of
Securities of the same series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless otherwise provided in or
pursuant to this Indenture) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such Depository (or its
custodian) or such other Depository (or its custodian) referred to above in
accordance with the instructions of the Company referred to above, and the
Trustee shall endorse such global Security to reflect the decrease in the
principal amount thereof resulting from such exchange. If a Registered Security
is issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next Interest Payment Date, or (ii) any
Special Record Date for such Security and before the opening of business at such
Office or Agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as
32
the case may be, only to the Person to whom interest in respect of such portion
of such global Security shall be payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this
Indenture, including the Guarantees, as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, or any redemption or repayment of Securities, or any
conversion or exchange of Securities for other types of securities or property,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 905 or 1107, upon repayment or repurchase in part of
any Registered Security pursuant to Article Thirteen, or upon surrender in part
of any Registered Security for conversion or exchange into Common Stock or other
securities or property pursuant to its terms, in each case not involving any
transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before any day of the selection for redemption of Securities of like tenor and
terms and of the same series under Section 1103 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of or
exchange any Registered Security, or portion thereof, so selected for
redemption, except in the case of any Registered Security to be redeemed in
part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer
Security so selected for redemption except, to the extent provided with respect
to such Bearer Security, that such Bearer Security may be exchanged for a
Registered Security of like tenor and terms and of the same series, provided
that such Registered Security shall be simultaneously surrendered for redemption
with written instruction for payment consistent with the provisions of this
Indenture or (iv) to issue, register the transfer of or exchange any Security
which, in accordance with its terms, has been surrendered for repayment at the
option of the Holder pursuant to Article Thirteen and not withdrawn, except the
portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
33
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture, including the
Guarantees, equally and proportionately with any and all other Securities of
such series and any Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall (to the
extent lawful) be exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons.
34
Section 307. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise provided
in or pursuant to this Indenture, in case a Bearer Security is surrendered in
exchange for a Registered Security after the close of business at an Office or
Agency for such Security on any Regular Record Date therefor and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date therefor, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date and interest shall not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on such Registered Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when so deposited to be
held in trust for the benefit of the Person entitled to such Defaulted
Interest as in this Clause provided. Thereupon, the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to the
Holder of such Registered Security (or a Predecessor Security thereof)
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper
of general circulation in the Borough of Manhattan,
35
The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Person in whose name such Registered Security (or
a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security is
surrendered at the Office or Agency for such Security in exchange for a
Registered Security after the close of business at such Office or
Agency on any Special Record Date and before the opening of business at
such Office or Agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without
the Coupon relating to such Defaulted Interest and Defaulted Interest
shall not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but
shall be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States of America.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantors, the Trustee and any agent of the Company,
a Guarantor or the Trustee may treat the Person in whose name such Registered
Security is registered in the Security Register as the absolute owner of such
Registered Security for the purpose of receiving payment of principal of, any
premium and (subject to Sections 305 and 307) interest on and any Additional
Amounts with respect to such Registered Security and for all other purposes
whatsoever, whether or not any payment with respect to such Registered Security
shall be overdue, and none of the Company, a Guarantor, the Trustee or any agent
of the Company, a Guarantor or the Trustee shall be affected by notice to the
contrary.
The Company, the Guarantors, the Trustee and any agent of the Company,
a Guarantor or the Trustee may treat the bearer of any Bearer Security or the
bearer of any Coupon as the
36
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, a Guarantor, the Trustee or any agent of the Company, a
Guarantor or the Trustee shall be affected by notice to the contrary.
No owner of any beneficial interest in any global Security registered
in the name of a Depository or its nominee shall have any rights under this
Indenture with respect to such global Security, and such Depository or its
nominee, as the case may be, may be treated by the Company, the Guarantors, the
Trustee, and any agent of the Company, a Guarantor or the Trustee as the owner
and Holder of such global Security for all purposes whatsoever. None of the
Company, the Guarantors, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, a Guarantor, the Trustee, any Paying Agent or the Security Registrar
from giving effect to any written certification, proxy or other authorization
furnished by the applicable Depository, as a Holder, with respect to a global
Security or impair, as between such Depository and the owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such Depository (or its nominee) as the
Holder of such global Security.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee in accordance with its customary
procedures, unless by a Company Order the Company directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
37
` ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Unless, pursuant to Section 301, the provisions of this Section 401
shall not be applicable with respect to the Securities of any series, upon the
direction of the Company by a Company Order, this Indenture shall cease to be of
further effect with respect to any series of Securities specified in such
Company Order and any Coupons appertaining thereto, and the Trustee, on receipt
of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining
thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such
exchange whose surrender is not required or has been waived as
provided in Xxxxxxx 000, (xx) Securities and Coupons of such
series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Xxxxxxx 000, (xxx)
Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date
whose surrender has been waived as provided in Section 1106,
and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(b) all Securities of such series and, in the
case of (i) or (ii) below, if applicable, any Coupons
appertaining thereto not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, money in the Currency in
which such Securities are payable in an amount sufficient to
pay and discharge the entire indebtedness on such Securities
and any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation,
38
including the principal of, any premium and interest on, and,
to the extent that the Securities of such series provide for
the payment of Additional Amounts thereon and the amount of
any such Additional Amounts which are or will be payable with
respect to the Securities of such series is at the time of
deposit determinable by the Company (in the exercise by the
Company of its reasonable discretion), any Additional Amounts
with respect to, such Securities and any Coupons appertaining
thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company or any of the Guarantors with
respect to the Outstanding Securities of such series and any Coupons
appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel and each Guarantor has delivered
to the Trustee a Guarantor Officers' Certificate, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
In the event there are Securities of two or more series Outstanding
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of such series as to which it is Trustee and if the other
conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company and the
Guarantors to the Trustee under Section 606 and, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the obligations of the Company, the Guarantors and the Trustee with
respect to the Securities of such series under Sections 305, 306, 403, 404,
1002, 1003 and, if applicable to the Securities of such series, 1004 (including,
without limitation, with respect to the payment of Additional Amounts, if any,
with respect to such Securities as contemplated by Section 1004, but only to the
extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to
Section 401(1)(b)), any rights of Holders of the Securities of such series
(unless otherwise provided pursuant to Section 301 with respect to the
Securities of such series) to require the Company to repurchase or repay, and
(unless otherwise so provided pursuant to Section 301) the obligations of the
Company to repurchase or repay, such Securities at the option of the Holders
pursuant to Article Thirteen hereof, and any rights of Holders of the Securities
of such series (unless otherwise provided pursuant to Section 301 with respect
to the Securities of such series) to convert or exchange, and (unless otherwise
so provided pursuant to Section 301) the obligations of the Company to convert
or exchange, such Securities into Common Stock or other securities or property,
shall survive and, to the extent that any of such surviving rights or
obligations shall constitute Guaranteed Obligations or shall otherwise have been
guaranteed by the Guarantors pursuant to Article Sixteen, the Guarantees and
other provisions of Article Sixteen shall, solely insofar as they relate to such
surviving rights and obligations, also survive.
39
Section 402. Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of this
Section 402 or (ii) covenant defeasance of the Securities of or within a series
under clause (3) of this Section 402 shall not be applicable with respect to the
Securities of such series, then such provisions, together with the other
provisions of this Section 402 (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any Coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to the
Securities of or within such series and any Coupons appertaining thereto, elect
to have Section 402(2) or Section 402(3) be applied to such Outstanding
Securities and any Coupons appertaining thereto upon compliance with the
conditions set forth below in this Section 402. Unless otherwise specified
pursuant to Section 301 with respect to the Securities of any series, defeasance
under clause (2) of this Section 402 and covenant defeasance under clause (3) of
this Section 402 may be effected only with respect to all, and not less than
all, of the Outstanding Securities of any series. To the extent that the terms
of any Security or Coupon appertaining thereto established in or pursuant to
this Indenture permit the Company or any Holder thereof to extend the date on
which any payment of principal of, or premium, if any, or interest, if any, on,
or Additional Amounts, if any, with respect to such Security or Coupon is due
and payable, then unless otherwise provided pursuant to Section 301, the right
to extend such date shall terminate upon defeasance or covenant defeasance, as
the case may be.
(2) Upon the Company's exercise of the above option applicable to
this Section 402(2) with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any Coupons appertaining thereto on
the date the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any Coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of clause (5) of this Section 402 and the other Sections of
this Indenture referred to in clauses (i) through (iv) of this paragraph, and to
have satisfied all of its other obligations under such Securities and any
Coupons appertaining thereto and this Indenture insofar as such Securities and
any Coupons appertaining thereto are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities and any
Coupons appertaining thereto to receive, solely (except as provided in clause
(ii) below) from the trust fund described in clause (4)(a) of this Section 402
and as more fully set forth in this Section 402 and 403, payments in respect of
the principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, (ii) the obligations of the Company, the
Guarantors and the Trustee with respect to such Securities under Sections 305,
306, 1002, 1003 and, if applicable to the Securities of such series, 1004
(including, without limitation, with respect to the payment of Additional
Amounts, if any, with respect to such Securities as contemplated by Section
1004, but only to the extent that the Additional Amounts payable with respect to
such Securities exceed the amount deposited in respect of such Additional
Amounts pursuant to clause (4)(a) of this Section 402)), any rights of Holders
of such Securities (unless otherwise provided pursuant to Section 301 with
respect to the Securities of such series) to require the Company to repurchase
or repay, and (unless otherwise so provided pursuant to Section 301) the
obligations of the Company to repurchase or repay, such Securities at the option
of the Holders pursuant to Article Thirteen hereof, and any rights of Holders of
such Securities (unless otherwise provided pursuant to Section 301 with respect
to the Securities of such series) to convert or exchange, and (unless
40
otherwise so provided pursuant to Section 301) the obligations of the Company to
convert or exchange, such Securities into Common Stock or other securities or
property, (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (iv) this Section 402 and Sections 403 and 404. Upon any
defeasance of the Securities of any series pursuant to this Section 402(2), the
Guarantors will be released from their Guarantees of the Securities of such
series and any Coupons appertaining thereto except to the extent that any of the
surviving provisions referred to in any of clauses (i) through (iv) of the
immediately preceding sentence shall constitute Guaranteed Obligations or shall
otherwise have been guaranteed by the Guarantors pursuant to Article Sixteen,
the Guarantees and other provisions of Article Sixteen shall, solely insofar as
they relate to such surviving provisions, also survive. The Company may exercise
its option under this Section 402(2) notwithstanding the prior exercise of its
option under Section 402(3) with respect to such Securities and any Coupons
appertaining thereto.
(3) Upon the Company's exercise of the above option applicable to
this Section 402(3) with respect to any Securities of or within a series, the
Company shall be released from its obligations under clauses (ii) and (iii) of
Section 1005 and under Sections 1006 and 1007 and, to the extent specified
pursuant to Section 301, any other covenant applicable to such Securities with
respect to such Securities and any Coupons appertaining thereto on and after the
date the conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any Coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with any such covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that with respect to such Outstanding
Securities and any Coupons appertaining thereto, the Company may omit to comply
with, and shall have no liability in respect of, any term, condition or
limitation set forth in any such Section or any such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default
under Section 501(4) or 501(9) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and Coupons
appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of clause
(2) or (3) of this Section 402 to any Outstanding Securities of or within a
series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply with the
provisions of this Section 402 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security
41
for, and dedicated solely to, the benefit of the Holders of such
Securities and any Coupons appertaining thereto, (1) an amount in
Dollars or in such Foreign Currency in which such Securities and any
Coupons appertaining thereto are then specified as payable at Stated
Maturity or, if such defeasance or covenant defeasance is to be
effected in compliance with subsection (f) below, on the relevant
Redemption Date, as the case may be, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto
(determined on the basis of the Currency in which such Securities and
Coupons appertaining thereto are then specified as payable at Stated
Maturity or, if such defeasance or covenant defeasance is to be
effected in compliance with subsection (f) below, on the relevant
Redemption Date, as the case may be) which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment of principal of (and premium, if any) and interest, if any,
on such Securities and any Coupons appertaining thereto, money in an
amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such principal
and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (y) the principal of (and premium, if any) and interest, if
any, on, and, to the extent that such Securities provide for the
payment of Additional Amounts thereon and the amount of any such
Additional Amounts which are or will be payable with respect to the
Securities of such series is at the time of deposit determinable by the
Company (in the exercise by the Company of its reasonable discretion),
any Additional Amounts with respect to, such Outstanding Securities and
any Coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest or the applicable
Redemption Date, as the case may be, and (z) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company or any Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
such Securities and any Coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit into trust, and,
solely in the case of defeasance under Section 402(2), no Event of
Default with respect to such Securities and any Coupons appertaining
thereto under clause (6) or (7) of Section 501 or event which with
notice or lapse of time or both would become an Event of Default with
respect to such Securities and any Coupons appertaining thereto under
clause (6) or (7) of Section 501 shall have occurred and be continuing
at any time during the period ending on and including the 91st day
after the date of such deposit (it being understood that this condition
to defeasance under Section 402(2) shall not be deemed satisfied until
the expiration of such period).
42
(d) In the case of defeasance pursuant to Section 402(2),
the Company shall have delivered to the Trustee an opinion of
independent counsel reasonably acceptable to the Trustee stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in applicable federal income tax law,
in either case to the effect that, and based thereon such opinion of
independent counsel shall confirm that, the Holders of such Outstanding
Securities of such series and any Coupons appertaining thereto will not
recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred; or, in the case
of covenant defeasance pursuant to Section 402(3), the Company shall
have delivered to the Trustee an opinion of independent counsel
reasonably acceptable to the Trustee to the effect that the Holders of
such Outstanding Securities of such series and any Coupons appertaining
thereto will not recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance, as the
case may be, under this Indenture have been complied with.
(f) No event or condition shall exist that, pursuant to
the provisions of Article Seventeen or Article Eighteen, would prevent
the Company, or with notice or lapse of time or both would prevent the
Company, from making payments of the principal of, or premium or
interest, if any, on the Securities of such series and Coupons
appertaining thereto on the date of such deposit or at any time during
the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(g) If the monies or Government Obligations or
combination thereof, as the case may be, deposited under clause (a)
above are sufficient to pay the principal of, and premium, if any, and
interest, if any, on and, to the extent provided in such clause (a),
Additional Amounts with respect to, such Securities provided such
Securities are redeemed on a particular Redemption Date, the Company
shall have given the Trustee irrevocable instructions to redeem such
Securities on such date and to provide notice of such redemption to
Holders as provided in or pursuant to this Indenture.
(h) Notwithstanding any other provisions of this Section
402(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee -- collectively for purposes of this
Section 402(5) and Section 403, the "Trustee") pursuant to
43
clause (4)(a) of Section 402 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (other than the Company, any Guarantor or any
Subsidiary or Affiliate of the Company or any Guarantor acting as Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any Coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest and Additional Amounts, if any, but
such money need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company and the Guarantors, jointly and severally, shall pay and
indemnify the Trustee against any tax, fee or other charge, imposed on or
assessed against the Government Obligations deposited pursuant to this Section
402 or the principal or interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4)(a) of this Section 402 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to Section
401 or 402 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and
44
this Indenture, to the payment, either directly or through any Paying Agent
(other than the Company, any Guarantor or any Subsidiary or Affiliate of the
Company or any Guarantor) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, interest and Additional Amounts for whose
payment such money has or Government Obligations have been deposited with or
received by the Trustee; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
Section 404. Reinstatement.
If the Trustee (or other qualifying trustee appointed pursuant to
Section 402(4)(a)) or any Paying Agent is unable to apply any moneys or
Government Obligations deposited pursuant to Section 401(1) or 402(4)(a) to pay
any principal of or premium, if any, or interest, if any, on or Additional
Amounts, if any, with respect to the Securities of any series by reason of any
legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantors' obligations under this Indenture (including,
without limitation, the Guarantees) and the Securities of such series shall be
revived and reinstated as though no such deposit had occurred, until such time
as the Trustee (or other qualifying trustee) or Paying Agent is permitted to
apply all such moneys and Government Obligations to pay the principal of and
premium, if any, and interest, if any, on and Additional Amounts, if any, in
respect of the Securities of such series as contemplated by Sections 401 or 402
as the case may be, and Section 403; provided, however, that if the Company or
any Guarantor makes any payment of the principal of or premium, if any, or
interest if any, on or Additional Amounts, if any, in respect of the Securities
of such series following the reinstatement of its obligations as aforesaid, the
Company or such Guarantor, as the case may be, shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the funds held by
the Trustee (or other qualifying trustee) or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any
Additional Amounts payable in respect of any interest on, any of the
Securities of such series or any Coupon appertaining thereto when such
interest or such Additional Amounts, as the case may be, become due and
payable, and continuance of such default for a period of 30 days; or
45
(2) default in the payment of any principal of, or
premium, if any, on, or any Additional Amounts payable in respect of
any principal of or premium, if any, on, any of the Securities of such
series when due (whether at Stated Maturity, upon redemption at the
option of the Company, upon repayment or repurchase at the option of
the Holder or otherwise and whether payable in cash or in shares of
Common Stock or other securities or property); or
(3) default in the deposit of any sinking fund payment or
payment under any analogous provision when due with respect to any of
the Securities of such series; or
(4) default by the Company or any Guarantor in the
performance of, or breach of, any covenant or warranty of the Company
or such Guarantor, as the case may be, in this Indenture, or any
Security of such series (other than a covenant or warranty for which
the consequences of breach or nonperformance are addressed elsewhere in
this Section 501 or a covenant or warranty which has expressly been
included in this Indenture, whether or not by means of a supplemental
indenture, solely for the benefit of Securities of a series other than
such series) and continuance of such default or breach (without such
default or breach having been waived in accordance of the provisions of
this Indenture) for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of such series
a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any mortgage, indenture or other
instrument or agreement under which there may be issued or by which
there may be secured or evidenced any Indebtedness (other than
Non-Recourse Indebtedness) of the Company or any Significant
Subsidiary, whether such Indebtedness existed on the date of this
Indenture or shall be created thereafter, if (a) such default results
from the failure to pay any such Indebtedness when due (provided that
no such failure to pay Indebtedness when due shall be deemed to have
occurred so long as the Company or such Significant Subsidiary, as the
case may be, shall be contesting whether such Indebtedness is due in
good faith by appropriate proceedings) or as a result of such default
the maturity of such Indebtedness has been accelerated prior to its
expressed maturity and (b) the sum of (x) the principal amount of such
Indebtedness plus (y) the aggregate principal amount of all other such
Indebtedness in default for failure to pay any such Indebtedness when
due or the maturity of which has been so accelerated, equals
$20,000,000 or more, individually, or $40,000,000 or more, in the
aggregate, without such Indebtedness having been discharged or such
acceleration having been rescinded or annulled within a period of 30
days after notice to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of such series;
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
or any Significant Subsidiary in an involuntary case or proceeding
under any applicable Federal, State or foreign bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging
the Company or any Significant Subsidiary a bankrupt or
46
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Significant Subsidiary under any applicable
Federal, State or foreign law, or appointing a custodian, receiver,
conservator, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary or of any
substantial part of the property of the Company or any Significant
Subsidiary, or ordering the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary, and the continuance of any
such decree or order for relief unstayed and in effect for a period of
60 consecutive days; or
(7) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under any applicable
Federal, State or foreign bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated
a bankrupt or insolvent, or the consent by the Company or any
Significant Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in an involuntary
case or proceeding under any applicable Federal, State or foreign
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company or any Significant Subsidiary, or the filing by the Company
or any Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable Federal, State or
foreign law, or the consent by the Company or any Significant
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, conservator, liquidator,
assignee, trustee, sequestrator or similar official of the Company or
any Significant Subsidiary or of any substantial part of the property
of the Company or any Significant Subsidiary, or the making by the
Company or any Significant Subsidiary of an assignment for the benefit
of creditors, or the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such action; or
(8) the Guarantee of any Guarantor ceases to be in full
force and effect (other than by reason of the release of such Guarantor
in accordance with the terms of this Indenture) or is declared by a
court or governmental authority of competent jurisdiction to be null
and void or unenforceable or the Guarantee of any Guarantor is found by
a court or governmental authority of competent jurisdiction to be
invalid or a Guarantor denies its liability under its Guarantee (other
than by reason of the release of such Guarantor in accordance with the
terms of this Indenture); or
(9) any other Event of Default provided in or pursuant to
this Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series occurs
and is continuing, then either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Outstanding Securities of such series may
declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, and accrued and
unpaid interest, if any, thereon to be due and payable immediately, by a notice
in writing to
47
the Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or such lesser amount, as the case may be, and such
accrued and unpaid interest shall become immediately due and payable.
At any time after Securities of any series have been accelerated but
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
such series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company or any Guarantor has paid or deposited
with the Trustee a sum of money sufficient to pay (or, to the extent
that the terms of the Securities of such series established pursuant to
Section 301 expressly provide for payment to be made in shares of
Common Stock or other securities or property, shares of Common Stock or
other securities or property, together with cash in lieu of fractional
shares or securities, sufficient to pay)
(a) all overdue installments of any interest on
any Securities of such series and any Coupons appertaining
thereto which have become due otherwise than by such
declaration of acceleration and any Additional Amounts with
respect thereto,
(b) the principal of and any premium on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and any Additional Amounts
with respect thereto and, to the extent permitted by
applicable law, interest thereon at the rate or respective
rates, as the case may be, provided for in or with respect to
such Securities, or, if no such rate or rates are so provided,
at the rate or respective rates, as the case may be, of
interest borne by such Securities,
(c) to the extent permitted by applicable law,
interest upon installments of any interest, if any, which have
become due otherwise than by such declaration of acceleration
and any Additional Amounts with respect thereto at the rate or
respective rates, as the case may be, provided for in or with
respect to such Securities, or, if no such rate or rates are
so provided, at the rate or respective rates, as the case may
be, of interest borne by such Securities, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section
606; and
(2) all Events of Default with respect to Securities of
such series other than the non-payment of the principal of, any premium
and interest on, and any Additional Amounts with respect to Securities
of such series which shall have become due solely by such declaration
of acceleration, shall have been cured or waived as provided in Section
513.
48
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on, or
any Additional Amounts payable in respect of any interest on, any
Security or any Coupon appertaining thereto when such interest or
Additional Amounts, as the case may be, shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of any principal of or
premium, if any, on, or any Additional Amounts payable in respect of
any principal of or premium, if any, on, any Security at its Maturity,
or
(3) default is made in the deposit of any sinking fund
payment when due,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent permitted by applicable law, upon any overdue
installments of interest and Additional Amounts at the rate or respective rates,
as the case may be, provided for or with respect to such Securities or, if no
such rate or rates are so provided, at the rate or respective rates, as the case
may be, of interest borne by such Securities, and, in addition thereto, such
further amount of money as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and all other amounts due to
the Trustee under Section 606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any Guarantor or any other obligor upon such Securities
and any Coupons appertaining thereto or any Guarantees and collect the monies
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any Guarantor or any other obligor upon such
Securities and any Coupons appertaining thereto or any Guarantees, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
49
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, any Guarantor or any other obligor
upon the Securities or any Guarantees or the property of the Company or any
Guarantor or such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company or any Guarantor for the payment of
any overdue principal, premium, interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of such
series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of the Securities and any Coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and
of the Holders of Securities or any Coupons allowed in such judicial
proceeding, and
(2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit
50
of each and every Holder of a Security or Coupon in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with
respect to the Securities of any series shall, subject to the subordination
provisions hereof, be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal, or any premium, interest or Additional Amounts, upon presentation of
such Securities or the Coupons, if any, appertaining thereto, or both, as the
case may be, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of such series shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority of the aggregate principal amount of the Outstanding
Securities of such series;
51
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, and premium, if any, and
(subject to Sections 305 and 307) interest, if any, on and any Additional
Amounts with respect to such Security or such Coupon, as the case may be, on the
respective Stated Maturity or Maturities therefor specified in such Security or
Coupon (or, in the case of redemption, on the Redemption Date or, in the case of
repayment pursuant to Article Thirteen hereof at the option of such Holder if
provided in or pursuant to this Indenture, on the date such repayment is due),
and to receive any payments required to be made by any Guarantor pursuant to its
Guarantee when due, and, in the case of any Security which is convertible into
or exchangeable for other securities or property, to convert or exchange, as the
case may be, such Security in accordance with its terms, and to institute suit
for the enforcement of any such payment and any such right to convert or
exchange, and such right shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Guarantors, the Trustee and each such Holder shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and each such Holder shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
To the extent permitted by applicable law and except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to each and
every Holder of a Security or a Coupon is intended to be exclusive of any other
right or remedy, and every right and remedy, to the extent permitted by law,
shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not, to the extent permitted by law, prevent the concurrent assertion or
employment of any other appropriate right or remedy.
52
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall,
to the extent permitted by applicable law, impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to any
Holder of a Security or a Coupon may, to the extent permitted by applicable law,
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series and any Coupons appertaining thereto; provided
that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the
rights of the other Holders of Securities of such series not joining in
such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
(1) a default in the payment of the principal of, any
premium or interest on, or any Additional Amounts with respect to, any
Security of such series or any Coupons appertaining thereto, or
(2) in the case of any Securities which are convertible
into or exchangeable for Common Stock or other securities or property,
a default in any such conversion or exchange, or
(3) a default in respect of a covenant or provision
hereof which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
53
Section 514. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Guarantors covenants that (to the extent
that it may lawfully do so) it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or any other law wherever enacted, now or at any
time hereafter in force, which would prohibit or forgive the Company or such
Guarantor, as the case may be, from paying all or any portion of the principal
of or premium, if any, or interest, if any on or Additional Amounts, if any,
with respect to any Securities as contemplated herein and therein, or any amount
due under its Guarantee, as applicable, or which may affect the covenants or the
performance of this Indenture or the Securities; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee or the
Holders, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
disbursements, against any party litigant in such suit having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 515 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on or
Additional Amounts, if any, with respect to any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, and, in the case of repayment at
the option of the Holder pursuant to Article Thirteen hereof, on or after the
date for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or
54
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by an Company Request or an
Company Order or of a Guarantor mentioned herein shall be sufficiently
evidenced by a Guarantor Request or Guarantor Order (in each case,
other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution and any resolution of a
Guarantor's Board of Directors may be sufficiently evidenced by a
Guarantor's Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate or if such matter pertains to a Guarantor, a Guarantor's
Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or any Coupons appertaining thereto pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, coupon or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours
and upon reasonable notice, the books, records and premises of the
Company and the Guarantors, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
55
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund installment
with respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities and Coupons of such series; and provided,
further, that in the case of any default of the character specified in Section
501(4) or 501(9) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and the Guarantors and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in any Statement of Eligibility on Form T-1 supplied to
the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of the Securities or the proceeds
thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee, the Company
or a Guarantor, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company and the Guarantors with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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Section 606. Compensation and Reimbursement.
The Company and the Guarantors jointly and severally agree:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to
hold them harmless against, any loss, liability, damages, claims or
reasonable expenses (including, without limitation, the reasonable fees
and disbursements of the Trustee's agents, legal counsel, accountants
and experts) incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the reasonable costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder, except to the extent that any such loss, liability or
expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, or premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501(6) or (7) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law. "Trustee"
for purposes of this Section 606 shall include any predecessor Trustee but the
negligence or bad faith of any Trustee shall not affect the rights of any other
Trustee under this Section 606. The provisions of this Section 606 shall, to the
extent permitted by law, survive any termination of this Indenture (including,
without limitation, termination pursuant to any Bankruptcy Laws) and the
resignation or removal of the Trustee.
Section 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000 subject to supervision or examination by Federal or state authority.
If at any time
57
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and the
Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Company or any Holder of a Security of such series who has been a
bona fide Holder of a Security of such series for at least six months,
or
(b) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by the
Company or any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide
58
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 609. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantors and the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties hereunder of the retiring Trustee;
but, on the request of the Company or such successor Trustee, such retiring
Trustee, upon payment of its charges, shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and, subject to Section 1003, shall duly assign, transfer and
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deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantors, the retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or such
successor Trustee, such retiring Trustee, upon payment of its charges with
respect to the Securities of that or those series to which the appointment of
such successor relates and subject to Section 1003 shall duly assign, transfer
and deliver to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, subject to its claim, if any,
provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Company and the Guarantors shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in paragraph (1) or (2) of this
Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor Person
shall be qualified and eligible under this Article.
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Section 610. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
(provided that such Corporation shall otherwise be qualified and eligible under
this Article), without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any such
successor to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities. In case any
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Securities in either
its own name or that of its predecessor Trustee.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption, partial repayment, partial conversion or exchange for Common
Stock or other securities or property, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be a
Corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided that
such Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
[_____________________],
As Trustee
By: _______________________________
As Authenticating Agent
By: _______________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance
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located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
in writing (which writing need not be accompanied by or contained in an
Officers' Certificate of the Company), shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company and the Guarantors shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each
series, a list, in each case in such form as the Trustee may reasonably
require, of the names and addresses of Holders as of the applicable
date, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company or a Guarantor
of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security
Registrar no such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company, the Guarantors and the Trustee that none of the
Company, the Guarantors, the Trustee, any Paying Agent or any Security Registrar
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 312(c) of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the
first May 15 following the first issuance of Securities pursuant to Section 301,
if required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 with respect to any of the events specified in said
Sections 313(a) and 313(b)(2) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
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(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
Section 704. Reports by Company and the Guarantors.
The Company and the Guarantors, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the
Company or any Guarantor is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company or such Guarantor, as the case
may be, may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company or such
Guarantor, as the case may be, is not required to file information,
documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with
respect to compliance by the Company or any Guarantor, as the case may
be, with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c)
of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company or any
Guarantor pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms.
Neither the Company nor any of the Guarantors shall, in any transaction
or series of related transactions, consolidate or merge with or into any other
Person or sell, lease, assign, transfer or otherwise convey all or substantially
all of its properties and assets to any Person, unless:
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(1) either (A) the Company or such Guarantor, as the case
may be, shall be the continuing Person (in the case of a merger), or
(B) the successor Person (if other than the Company or such Guarantor,
as the case may be) formed by or resulting from the consolidation or
merger or to which such properties and assets shall have been sold,
leased, assigned, transferred or otherwise conveyed (i) shall be, in
the case of a merger, consolidation or other such transaction involving
the Company, a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia
and shall expressly assume, by an indenture (or indentures, if at such
time there is more than one Trustee) supplemental hereto, executed by
such successor corporation and the Guarantors and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest, if any,
on, and any Additional Amounts with respect to, all the Outstanding
Securities and the due and punctual performance and observance of every
obligation in this Indenture and the Outstanding Securities on the part
of the Company to be performed or observed, and which supplemental
indenture shall provide for conversion or exchange rights in accordance
with the provisions of the Outstanding Securities of any series that
are convertible or exchangeable into Common Stock or other securities
and the affirmation by all of the Guarantors of their Guarantees and
other obligations under this Indenture or (ii) shall be, in the case of
a merger, consolidation or other such transaction involving a
Guarantor, a corporation or other entity organized and existing under
the laws of the United States of America, any state thereof or the
District of Columbia and (except in the case of a merger of such
Guarantor into, or a sale, lease, assignment, transfer or other
conveyance of all or substantially all of such Guarantor's properties
and assets to, the Company) shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by such successor corporation or other
entity, as the case may be, the Company and the other Guarantors and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual performance and observance of every obligation in this
Indenture (including, without limitation, its Guarantee) on the part of
such Guarantor to be performed or observed, and which supplemental
indenture shall provide for the affirmation by all of the Guarantors of
their Guarantees and other obligations under this Indenture;
(2) immediately after giving effect to such transaction
or transactions, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have
occurred and be continuing; and
(3) either the Company or, in the case of a
consolidation, merger or other transaction involving the Company, the
successor Person shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, lease, assignment, transfer or other
conveyance and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
For purposes of the foregoing, any sale, lease, assignment, transfer or
other conveyance of all or any of the properties and assets of one or more
Subsidiaries (other than to the Company
65
or another Subsidiary), which, if such properties and assets were owned by the
Company, would constitute all or substantially all of the Company's properties
and assets, shall be deemed to be the transfer of all or substantially all of
the properties and assets of the Company.
Section 802. Successor Person Substituted for Company or Guarantor.
Upon any consolidation by the Company or any Guarantor with, or any
merger of the Company or any Guarantor into, any other Person or any sale,
lease, assignment, transfer or other conveyance of all or substantially all of
the properties and assets of the Company or any Guarantor to any Person in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company or such Guarantor, as the case may be, is merged or to
which such sale, lease, assignment, transfer or other conveyance is made shall
succeed to, and be substituted for, the Company or (except in the case of a
merger of such Guarantor into, or a sale, lease, assignment, transfer or other
conveyance of all or substantially all of such Guarantor's properties and assets
to, the Company) such Guarantor, as the case may be, and may exercise every
right and power of the Company or (except in the case of a merger of such
Guarantor into, or a sale, lease, assignment, transfer or other conveyance of
all or substantially all of such Guarantor's properties and assets to, the
Company) such Guarantor, as the case may be, under this Indenture with the same
effect as if such successor Person had been named as the Company or such
Guarantor, as applicable, herein; and thereafter, except in the case of a lease,
the predecessor Person shall be released from all obligations and covenants
under this Indenture and, in the case of a transaction involving the Company,
the Securities and the Coupons, or in the case of a transaction involving a
Guarantor, its Guarantee.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution), the Guarantors
(each when authorized by a Guarantor's Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company or a Guarantor as permitted hereunder in the case of a merger,
consolidation or sale, lease assignment, transfer or other conveyance
of all or substantially all of the properties and assets of the Company
or a Guarantor, as the case may be, and the assumption by any such
successor of the obligations and covenants of the Company or such
Guarantor, as the case may be, contained herein and in the Securities;
or
(2) to add to the covenants of the Company or a Guarantor
for the benefit of the Holders of all or any series of Securities (as
shall be specified in such supplemental indenture or indentures) or to
surrender any right or power herein conferred upon the
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Company or a Guarantor with respect to all or any series of Securities
issued under this Indenture (as shall be specified in such supplemental
indenture or indentures); or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of, any premium or interest on or any Additional Amounts with
respect to Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
exchanged for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated or
global form; provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series or any Coupons
appertaining thereto; or
(4) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by Sections
201 and 301, including, without limitation, any conversion or exchange
provisions applicable to Securities which are convertible into or
exchangeable for other securities or property or to make provision so
that guarantees, executed on behalf of one or more of the Guarantors,
may be endorsed on any Securities and to establish the form of any such
guarantee, and any deletions from or additions or changes to this
Indenture in connection therewith (provided that any such deletions,
additions and changes shall not be applicable to any other series of
Securities then Outstanding); or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 609; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or which may be inconsistent
with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not adversely affect the interests of the Holders of Securities
of any series then Outstanding or any Coupons appertaining thereto; or
(7) to add any additional Events of Default with respect
to all or any series of Securities (as shall be specified in such
supplemental indenture); or
(8) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance, covenant defeasance and/or satisfaction and discharge of
any series of Securities pursuant to Article Four; provided that any
such action shall not adversely affect the interests of any Holder of a
Security of such series and any Coupons appertaining thereto or any
other Security or Coupon in any material respect; or
(9) to secure the Securities; or
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(10) to add Guarantors or to evidence the release of any
Guarantor in accordance with the provisions of this Indenture; or
(11) to qualify or maintain the qualification of this
Indenture under the Trust Indenture Act; or
(12) to make provisions with respect to conversion or
exchange rights of Holders of Securities of any series; or
(13) to amend or supplement any provision contained herein
or in any supplemental indenture or in any Securities (which amendment
or supplement may apply to one or more series of Securities or to one
or more Securities within any series as specified in such supplemental
indenture or indentures); provided that such amendment or supplement
does not apply to any Outstanding Security issued prior to the date of
such supplemental indenture and entitled to the benefits of such
provision; or
(14) in the case of any series of Securities which are
convertible into or exchangeable for Common Stock or other securities
or property, to safeguard or provide for the conversion or exchange
rights, as the case may be, of such Securities in the event of any
reclassification or change of outstanding shares of Common Stock or any
merger, consolidation, statutory share exchange or combination of the
Company with or into another Person or any sale, lease, assignment,
transfer, disposition or other conveyance of all or substantially all
of the properties and assets of the Company to any other Person or
other similar transactions, if expressly required by the terms of such
series of Securities established pursuant to Section 301.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by an Act of said Holders delivered to the
Company, the Guarantors and the Trustee, the Company (when authorized by or
pursuant to a Board Resolution), the Guarantors (each when authorized by or
pursuant to a Guarantor's Board Resolution) and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of modifying, or
amending, or adding any provisions to, or changing in any manner or eliminating
any of the provisions of this Indenture or of the Securities of such series or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture, without the consent of the Holder of each Outstanding Security
affected thereby, shall:
(1) change the Stated Maturity of the principal of, or
premium, if any, or any installment of interest, if any, on, or any
Additional Amounts, if any, with respect to, any Security, or reduce
the principal amount thereof or the premium, if any, thereon or the
rate (or modify the calculation of such rate) of interest thereon, or
reduce the amount payable upon redemption thereof at the option of the
Company or repayment thereof at the option of the Holder, or reduce any
Additional Amounts payable with respect thereto, or change the
obligation of the Company to pay Additional Amounts pursuant to Section
1004 (except as contemplated by Section 801(1) and permitted by Section
901(1)), or
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reduce the amount of the principal of any Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect the right of repayment at the option of any Holder as
contemplated by Article Thirteen, or change the Place of Payment where
or the Currency in which the principal of, any premium or interest on,
or any Additional Amounts with respect to any Security is payable or
change the Currency in which any amount is payable under any Guarantee,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of
repayment pursuant to Article Thirteen at the option of the Holder, on
or after the date for repayment) in each case as such Stated Maturity,
Redemption Date or date for repayment may, if applicable, be extended
in accordance with the terms of such Security or any Coupon
appertaining thereto, or in the case of any Security which is
convertible into or exchangeable for other securities or property,
impair the right to institute suit to enforce the right to convert or
exchange such Security in accordance with its terms, or impair the
right to institute suit for the enforcement of any payments required to
be made by any Guarantor pursuant to its Guarantee when due, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in Section 513 or 1008 of this Indenture, or
reduce the requirements of Section 1504 for quorum or voting at a
meeting of Holders of Securities, or
(3) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) make any change that adversely affects the right, if
any, to convert or exchange any Security for Common Stock or other
securities or property in accordance with its terms, or
(5) modify or affect in any manner adverse to the Holders
the terms and conditions of the obligations of the Guarantors in
respect of the due and punctual payment of principal of, or premium, if
any, or interest, if any, on or any sinking fund or analogous
requirements or Additional Amounts with respect to any Securities or
Coupons or any other Guaranteed Obligations or release any Guarantor
from any of its obligations under its Guarantee or this Indenture
except in accordance with the terms of this Indenture.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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Anything in this Indenture to the contrary notwithstanding, if more
than one series of Securities is Outstanding, the Company and the Guarantors
shall be entitled to enter into a supplemental indenture under this Section 902
with respect to any one or more series of Outstanding Securities without
entering into a supplemental indenture with respect to any other series of
Outstanding Securities.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, an Officers' Certificate from the
Company and a Guarantor's Officers' Certificate from each of the Guarantors and
an Opinion of Counsel to the effect that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that such
supplemental indenture has been duly authorized, executed and delivered by, and
is a valid, binding and enforceable obligation of, the Company and the
Guarantors, subject to customary exceptions. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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Section 907. Subordination Unimpaired.
This Indenture may not be amended to alter the subordination of any of
the Outstanding Securities without the written consent of each holder of Senior
Indebtedness and Guarantor Senior Indebtedness then outstanding that would be
adversely affected thereby.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series, whether payable in cash, shares of Common Stock or
other securities or property, in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company shall maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such Office or Agency. If at any time the Company shall fail
to maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified for
the purpose with respect to such Securities as provided in or pursuant to this
Indenture, and the Company and the
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Guarantors hereby appoint the Trustee as their respective agent to receive all
such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligations to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency.
Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates the Borough of Manhattan, The City of New York as a Place of
Payment for each series of Securities, initially appoints the Corporate Trust
Office of the Trustee in the Borough of Manhattan, The City of New York, as the
Company's Office or Agency in the Borough of Manhattan, The City of New York for
such purpose and initially appoints the Trustee as the Security Registrar for
each series of Securities and, if the Securities of any series are convertible
into or exchangeable for Common Stock or other securities or property, initially
appoints the Trustee as the conversion or exchange agent, as the case may be,
for the Securities of such series. The Company may subsequently appoint a
different Office or Agency in the Borough of Manhattan, The City of New York
and, as provided in Section 305, may remove and replace from time to time the
Security Registrar and may also remove or replace any conversion or exchange
agent.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company or any Guarantor shall at any time act as Paying Agent
with respect to any series of Securities, it shall, on or before each due date
of the principal of, any premium or interest on, or any Additional Amounts with
respect to any of the Securities of such series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency or Currencies
in which the Securities of such series are payable sufficient to pay the
principal, any premium, interest and Additional Amounts, as the case may be, so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and shall promptly notify the Trustee of its action or
failure so to act.
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Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, or any premium or interest on or any Additional Amounts with respect to, any
Securities of such series, deposit with any Paying Agent a sum (in the Currency
or Currencies described in the preceding paragraph) sufficient to pay the
principal, premium, interest and Additional Amounts, as the case may be, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional Amounts with
respect to Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the making
of any payment of principal, any premium or interest on or any
Additional Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
To the extent that the terms of any Securities established pursuant to Section
301 provide that any principal of, or premium or interest, if any, on or any
Additional Amounts with respect to any such Securities is or may be payable in
Common Stock or other securities or property, then the provisions of this
Section 1003 shall apply, mutatis mutandis, to such Common Stock or other
securities or property.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company or
any Guarantor, in trust for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to any Security of any series
or any Coupon appertaining thereto and remaining unclaimed for two years after
such principal or such premium or interest or Additional Amounts shall have
become due and payable shall be paid to the Company on Company Request (or if
deposited by a Guarantor, paid to such Guarantor on Guarantor Request), or (if
then held by the Company or
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any Guarantor) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company and the Guarantors, jointly and
severally, for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company or such
Guarantor, as the case may be, as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may, not later than 30 days after the Company's or
such Guarantor's, as the case may be, request for such repayment, at the expense
of the Company cause to be published once, in an Authorized Newspaper in each
Place of Payment for such series or to be mailed to Holders of Registered
Securities of such series, or both, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing nor shall it be earlier than two years
after such principal and any premium or interest or Additional Amounts shall
have become due and payable, any unclaimed balance of such money then remaining
will be repaid to the Company or the applicable Guarantor, as the case may be.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Securities or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established hereby or pursuant hereto to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the Paying Agent or Paying Agents, if other than the
Trustee, an Officers' Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and premium, if any, or
interest, if any, on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto who are United
States Aliens without withholding or deduction for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series or pursuant to Section 301 with respect to the Securities of such series.
If any such withholding or deduction shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on or deducted from such payments to such Holders of Securities or Coupons, and
the Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. The Company and the
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Guarantors covenant to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section. Nothing in this Section 1004 or
elsewhere in this Indenture shall limit the obligation of the Company to pay
Additional Amounts with respect to the Securities of any series pursuant to the
terms, if any, established pursuant to Section 301 with respect to the
Securities of such series.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) the corporate
existence of the Company and the existence (corporate or other) of each
Subsidiary that is a Guarantor (and, if there shall at any time be a Guarantor
that is not a Subsidiary, such Guarantor shall do or cause to be done all things
necessary to preserve and keep in full force and effect its existence (corporate
or other)), (ii) the existence (corporate or other) of each Significant
Subsidiary that is not a Guarantor and (iii) the rights (charter and statutory),
licenses and franchises of the Company and each of its Significant Subsidiaries;
provided, however, that the Company shall not be required to preserve the
existence (corporate or other) of any of its Significant Subsidiaries that are
not Guarantors or any such right, license or franchise of the Company or any of
its Significant Subsidiaries if the Board of Directors of the Company determines
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and that the loss
thereof will not be disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
The Company will, and will cause each Significant Subsidiary to, cause
all its properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
Significant Subsidiary from discontinuing the operation and maintenance of any
of their respective properties if such discontinuance is, in the judgment of the
Board of Directors of the Company, desirable in the conduct of its business.
Section 1007. Payment of Taxes and Other Claims.
The Company will, and will cause each Significant Subsidiary to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon it or upon its income, profits or property, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon its property; provided, however, that neither the Company nor any
Significant Subsidiary shall be required to pay or discharge or cause to be paid
or discharged any such material tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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Section 1008. Waiver of Certain Covenants.
The Company and the Guarantors may omit in any particular instance to
comply with any term, provision, condition or covenant set forth in Sections
1002 to 1007, inclusive, with respect to the Securities of any series and, if
expressly provided pursuant to Section 301(18), any additional covenants
applicable to the Securities of such series (in each case excluding any term,
provision, condition or covenant which under Article Nine cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such
series affected thereby) if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, on behalf of all Holders of Securities of that series, by Act of such
Holders, either shall waive such compliance in such instance or generally shall
have waived compliance with such term, provision, condition or covenant, but no
such waiver shall extend to or affect such term, provision, condition or
covenant except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the Guarantors and the
duties of the Trustee in respect of any such term, provision, condition or
covenant shall remain in full force and effect.
Section 1009. Company Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating whether or not, to the best of his or her knowledge, the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to notice
requirements or periods of grace) and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which he or
she may have knowledge.
Section 1010. Guarantors' Statement as to Compliance.
Each Guarantor shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement (which need not be contained in or
accompanied by an Guarantor's Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of such Guarantor, stating whether or not, to the best of his or her
knowledge, such Guarantor is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to
notice requirements or periods of grace) and if such Guarantor shall be in
default, specifying all such defaults and the nature and status thereof of which
he or she may have knowledge.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and, in the event that the Company shall determine
that the Securities of any series to be redeemed shall be selected from
Securities of such series having the same issue date, interest rate or interest
rate formula, Stated Maturity and other terms (the "Equivalent Terms"), the
Company shall notify the Trustee of such Equivalent Terms.
In the case of any redemption of Securities (A) prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture or (B) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or
if less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series with
Equivalent Terms, as the case may be, not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal amount of
Registered Securities of such series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to
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be redeemed only in part, to the portion of the principal of such Securities
which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities or property in part
before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portions thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) that, in case any Security is to be redeemed in part only,
on and after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, together (if applicable) with accrued and unpaid interest, if
any, thereon (subject, if applicable, to the provisos to the first
paragraph of Section 1106), and, if applicable, that interest thereon
shall cease to accrue on and after said date,
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto,
if any, maturing after the Redemption
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Date, are to be surrendered for payment of the Redemption Price and any
accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on the Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made,
(10) in the case of Securities of any series that are
convertible or exchangeable into Common Stock or other securities or
property, the then current conversion or exchange price or rate, the
date or dates on which the right to convert or exchange the principal
of the Securities of such series to be redeemed will commence or
terminate, as applicable, and the place or places where and the Persons
to whom such Securities may be surrendered for conversion or exchange,
(11) the CUSIP number or other applicable identification
number of such Securities, if any (or any other numbers used by a
Depository to identify such Securities), and
(12) if the Redemption Price or any portion thereof shall be
payable, at the option of the Company or any Holders, in cash or in
Common Stock or other securities or property (or a combination
thereof), a statement as to whether the Company has elected to pay the
Redemption Price in cash or Common Stock or other securities or
property or a combination thereof and, if applicable, the portion of
the Redemption Price that is to be paid in cash, Common Stock or other
securities or property.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to noon (local time in New York City) on any Redemption
Date, the Company shall deposit, with respect to the Securities of any series
called for redemption pursuant to Section 1104, with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of
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money in the applicable Currency sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified pursuant to Section 301 for or in the Securities of such
series) any accrued interest on and Additional Amounts with respect to, all such
Securities or portions thereof which are to be redeemed on that date, except
that, if the Securities of such series are convertible or exchangeable into
Common Stock or other securities or property, no such deposit shall be required
with respect to any such Securities (or portions thereof) which have been
converted or exchanged prior to such Redemption Date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed (except, in the case of Securities which are convertible or
exchangeable into Common Stock or other securities or property, any such
Securities which shall have been so converted or exchanged prior to the
applicable Redemption Date) shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, together with (unless
otherwise provided with respect to the Securities of such series pursuant to
Section 301) accrued and unpaid interest, if any, thereon and from and after
such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities shall cease to bear interest
and the Coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all Coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with, unless otherwise provided in or pursuant to this Indenture, any accrued
and unpaid interest thereon and Additional Amounts with respect thereto to but
excluding the Redemption Date; provided, however, that, except as otherwise
provided in or pursuant to this Indenture or the Bearer Securities of such
series, installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002); and provided,
further, that, except as otherwise specified in or pursuant to this Indenture or
the Registered Securities of such series, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price or, at the option
of the Company, after payment to the Trustee for the benefit of the Company of,
an amount equal to the face amount of all such missing Coupons, or the surrender
of such missing Coupon or Coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
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Coupons at an Office or Agency for such Security located outside of the United
States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security or, if no rate is prescribed therefor in the Security, at the rate
of interest, if any, borne by such Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depository for
such Security in global form as shall be specified in the Company Order with
respect thereto to the Trustee, without service charge, a new Security in global
form in a denomination equal to and in exchange for the unredeemed portion of
the principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
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Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such series for redemption, except upon Company Request, and
such cash payment shall be held by the Trustee or a Paying Agent and applied to
the next succeeding sinking fund payment; provided, however, that the Trustee or
such Paying Agent shall at the written request of the Company from time to time
pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that series purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1301, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the applicable repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
Unless otherwise expressly stated in this Indenture or pursuant to
Section 301 with respect to the Securities of any series or unless the context
otherwise requires, all references in this Indenture to the repayment of
Securities at the option of the Holders thereof (and all references of like
import) shall be deemed to include a reference to the repurchase of Securities
at the option of the Holders thereof.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency or (ii)
any distribution to Holders of Securities of any series in which not all of such
Securities are denominated in the same Currency, in the absence of any provision
to the contrary in or pursuant to this Indenture or the Securities of such
series, any amount in respect of any Security denominated in a Currency other
than Dollars shall be treated for any such action, determination or distribution
as that amount of Dollars that could be obtained for such amount on such
reasonable basis of exchange and as of the record date with respect to
Registered Securities of such series (if any) for such action, determination or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to
Section 106) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in clause (1) of this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
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Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting or
duly reconvened meeting of Holders of Securities of such series; provided,
however, that if any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be given by the
Holders of at least 66-2/3% in principal amount of the Outstanding Securities of
a series, the Persons entitled to vote 66-2/3% in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(1), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented at a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of at least 66-2/3% in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of at least 66-2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
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Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If
the Securities of such series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than
$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the
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secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
GUARANTEE
Section 1601. Unconditional Guarantee.
Subject to the provisions of this Article Sixteen, in recognition of
the benefits that the issuance of the Securities will confer upon the Company
and the Guarantors and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, each Guarantor hereby
absolutely, fully, unconditionally and irrevocably guarantees, jointly and
severally, to each Holder of any Securities and to each Holder of any Coupons
appertaining thereto and to the Trustee on behalf of each such Holder prompt
payment when due, whether at Stated Maturity, by declaration of acceleration,
upon redemption at the option of the Company, upon repurchase or repayment at
the option of the Holder or otherwise, and at all times thereafter, of the
principal of and premium, if any, and interest, if any, on, and all Additional
Amounts and other amounts, if any, payable with respect to, the Securities
(whether Outstanding on the date of this Indenture or issued on or after such
date) and any Coupons appertaining thereto (including, without limitation, to
the maximum extent permitted by law, interest on any overdue principal, premium,
if any, interest, if any, or Additional Amounts or other amounts, if any, in
respect of the Securities) and the due and punctual payment of any sinking fund
or analogous payments provided for pursuant to the terms of any of the
Securities or this Indenture, and of any and all other existing and future
indebtedness and liabilities of every kind, nature and character, direct or
indirect, absolute or contingent, liquidated or unliquidated, voluntary or
involuntary, of the Company to the Holders of the Securities or any Coupons
appertaining thereto arising under this Indenture or the Securities or such
Coupons (collectively, the "Guaranteed Obligations"), all in accordance with the
respective terms of the Securities and any Coupons appertaining thereto and this
Indenture. Without limitation to the provisions of the immediately preceding
sentence, if the Company shall have agreed pursuant to a registration rights
agreement or other similar instrument or agreement to pay additional interest or
liquidated damages or to make similar payments with respect to the Securities of
any series or any Coupons appertaining thereto under the circumstances specified
therein, then, unless otherwise expressly provided with respect to the
Securities of such series pursuant to Section 301, each Guarantor's Guarantee of
the Securities of such series and any Coupons appertaining thereto shall also be
deemed to guarantee the due and punctual payment of such additional interest,
liquidated damages or other similar payments, as the case may be, on the same
terms and subject to the same conditions as its Guarantee of the other
Guaranteed Obligations, and, in such case, the term "Guaranteed Obligations"
shall be deemed to include such additional interest, liquidated
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damages or other similar payments. The Guarantors hereby agree, jointly and
severally, to cause payment of all Guaranteed Obligations to be made punctually
when and as the same shall become due and payable, whether at Stated Maturity,
by declaration of acceleration, upon redemption at the option of the Company,
upon repurchase or repayment at the option of the Holder or otherwise. Each
Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional and that, to the fullest extent permitted by law, its Guarantees
shall not be affected by the validity, regularity or enforceability of the
Guaranteed Obligations or of any Securities or Coupons appertaining thereto,
this Indenture or any other instrument or agreement evidencing any Guaranteed
Obligations, or any question as to the authenticity of any of the Securities or
any Coupons appertaining thereto, this Indenture or any other such instrument or
agreement, or by the existence, validity, enforceability, perfection or extent
of any collateral therefor, or by any fact or circumstance relating to the
Guaranteed Obligations which might otherwise constitute a legal or equitable
discharge of or defense to the obligations of any Guarantor under its Guarantee,
other than payment in full by the Company or any other Person.
Section 1602. Limitation of the Guarantors' Liability.
Each Guarantor and, by its acceptance and ownership of a Security and
by its acceptance of any benefits under any Guarantee, each Holder of a Security
or any Coupon appertaining thereto hereby confirms that it is the intention of
all parties that the obligations of the Guarantors under their Guarantees and
Section 1601 of this Indenture shall not constitute a fraudulent conveyance or
fraudulent transfer under any applicable fraudulent conveyance, fraudulent
transfer, bankruptcy, insolvency or other similar law of any applicable
jurisdiction. To effectuate the foregoing intention, each Holder of any
Securities or any Coupons appertaining thereto, by its acceptance and ownership
of such Securities or Coupons, as the case may be, and by its acceptance of any
benefits under any Guarantee, and each Guarantor hereby agree that the
obligations of such Guarantor under its Guarantee and Section 1601 of this
Indenture are limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of such Guarantor, result in the
obligations of such Guarantor under its Guarantee and Section 1601 of this
Indenture not constituting a fraudulent conveyance or fraudulent transfer under
applicable law. Subject to the preceding limitation, the obligations of each
Guarantor under its Guarantee and Section 1601 of this Indenture constitute a
guarantee of payment in full when due and not merely a guarantee of
collectability.
Section 1603. Effectiveness; No Termination.
The Guarantees set forth in this Article Sixteen shall not be valid and
obligatory for any purpose with respect to any Security or any Coupons
appertaining thereto until the certificate of authentication on such Security
shall have been signed by the Trustee or an Authenticating Agent in the manner
provided in this Indenture. Each Guarantee shall be a continuing and irrevocable
guarantee of all Guaranteed Obligations now or hereafter existing, and shall
remain in full force and effect until all of the Guaranteed Obligations are paid
in full or, in the case of the Guarantee of any Guarantor, until such time, if
any, as such Guarantor is released from its Guarantee in accordance with this
Indenture.
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Section 1604. Waiver of Notices.
Each Guarantor waives, to the fullest extent permitted by law, notice
of the acceptance of its Guarantee and of the extension or continuation of the
Guaranteed Obligations or any part thereof. Each Guarantor further waives, to
the fullest extent permitted by law, presentment, protest, notice, dishonor or
default, demand for payment and any other demands or notices to which such
Guarantor might otherwise be entitled.
Section 1605. Subrogation.
The Guarantors shall exercise no right of subrogation, contribution or
similar rights against the Company or any other Guarantor with respect to any
payments on the Guaranteed Obligations made under any Guarantee until all of the
Guaranteed Obligations are paid in full. If any amounts are paid to a Guarantor
in violation of the foregoing limitation, then such amounts shall be held in
trust by such Guarantor for the benefit of the Holders of the Securities and any
Coupons appertaining thereto, and shall forthwith be paid to the Trustee, on
behalf of such Holders.
Section 1606. Waiver of Suretyship Defenses.
To the fullest extent permitted by law, each Guarantor agrees that the
Trustee or the Holders of the Securities and any Coupons appertaining thereto
may, at any time and from time to time, and without notice to such Guarantor,
but subject to the applicable provisions of this Indenture, make any agreement
with the Company or with any other Person liable on any of the Guaranteed
Obligations or providing collateral as security for the Guaranteed Obligations
for the extension, renewal, payment, compromise, discharge or release of the
Guaranteed Obligations or any collateral (in whole or in part), or for any
modification or amendment of the terms thereof or of any instrument or agreement
evidencing the Guaranteed Obligations or the provision of collateral, all
without in any way impairing, releasing, discharging or otherwise affecting the
obligations of such Guarantor under its Guarantee. To the fullest extent
permitted by law, each Guarantor waives any defense arising by reason of any
disability or other defense of the Company or any other Guarantor, or the
cessation from any cause whatsoever of the liability of the Company (other than
by payment in full of the Guaranteed Obligations), or any claim that such
Guarantor's obligations exceed or are more burdensome than those of the Company
and waives the benefit of any statute of limitations affecting the liability of
such Guarantor hereunder. To the fullest extent permitted by law, each Guarantor
waives any right to enforce any remedy which the Trustee or any Holder of the
Securities now has or may hereafter have against the Company and waives any
benefit of and any right to participate in any security now or hereafter held by
the Trustee or any Holder of the Securities until all of the Guaranteed
Obligations are paid in full. Further, each Guarantor consents, to the fullest
extent permitted by law, to the Trustee's or any Holder's taking of, or failure
to take, any action which might in any manner or to any extent vary the risks of
the Guarantors under their Guarantees or which, but for this provision, might
operate as a discharge of any Guarantor.
To the extent permitted by law, each Guarantor hereby agrees that its
obligations hereunder shall be as principal and not merely as surety, are
independent of the Guaranteed Obligations and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be
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unaffected by, any invalidity, irregularity or unenforceability of any Security
and any Coupons appertaining thereto or this Indenture, any failure to enforce
the provisions of any Security or this Indenture, or any waiver, modification,
consent or indulgence granted with respect thereto by the Holder of any Security
or Coupon or the Trustee, the recovery of any judgment against the Company or
any action to enforce the same, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor.
Without limitation to any other provisions of this Article Sixteen or
any other provision of this Indenture, each Guarantor waives, to the extent
permitted by law, any and all rights and defenses described in subdivision (a)
of Section 2856 of the California Civil Code (to the extent applicable),
including without limitation rights of subrogation, reimbursement,
indemnification and contribution and any other rights and defenses that are or
may become available to such Guarantor by reason of Sections 2787 to 2855,
inclusive, of the California Civil Code. As set forth in Section 113 hereof,
this Indenture, the Securities, the Guarantees and any Coupons shall be governed
by and construed in accordance with the laws of the State of New York applicable
to agreements made or instruments entered into and, in each case, performed in
said State, and the parties hereto agree that this paragraph has been included
solely to set forth certain express waivers and shall not limit or be construed
to limit or otherwise affect the choice of the laws of the State of New York to
govern this Indenture, the Securities, the Guarantees or any Coupons.
Section 1607. Exhaustion of Other Remedies Not Required.
Each Guarantor waives, to the fullest extent permitted by law,
diligence by the Trustee or the Holders and action on delinquency in respect of
the Guaranteed Obligations or any part thereof, including, without limitation
any provisions of law requiring any party to exhaust any right or remedy or to
take any action against the Company, any other Guarantor or any other Person or
property before enforcing the Guarantee against such Guarantor.
Section 1608. Reinstatement.
Notwithstanding anything in this Indenture to the contrary, the
provisions of this Article Sixteen shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any portion of the
Guaranteed Obligations is revoked, terminated, rescinded or reduced or must
otherwise be restored or returned upon the insolvency, bankruptcy or
reorganization of the Company or any other Person or otherwise, as if such
payment had not been made and whether or not the Trustee or any Holder of
Securities or Coupons has released any Guarantor from its Guarantee and
regardless of any prior revocation, rescission, termination or reduction.
Section 1609. Subordination.
While an Event of Default under the Securities of any series has
occurred and is continuing, each Guarantor, to the extent permitted by law,
hereby subordinates the payment of all obligations and indebtedness of the
Company owing to such Guarantor, whether now existing or hereafter arising,
including but not limited to any obligation of the Company to such Guarantor as
subrogee of the Trustee or any Holder of Securities or Coupons or resulting from
such Guarantor's performance under its Guarantee, until such time as all
Guaranteed Obligations
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have been paid in full. If the Trustee so requests or, to the extent permitted
by law, the Holders of at least 25% in principal amount of the Outstanding
Securities of any series so request, any such obligation or indebtedness of the
Company to such Guarantor shall be enforced and performance received by such
Guarantor as trustee for the Trustee and the proceeds thereof shall be paid over
to the Trustee on behalf of the Holders of the Securities and any Coupons
appertaining thereto on account of the Guaranteed Obligations, but without, to
the extent permitted by law, reducing or affecting in any manner the liability
of any of the Guarantors under their Guarantees.
Section 1610. Information.
While an Event of Default under the Securities of any series has
occurred and is continuing, each Guarantor shall furnish promptly to the Trustee
any and all financial or other information regarding such Guarantor or its
property as the Trustee may reasonably request in writing.
Section 1611. Acceleration.
In the event that acceleration of the time for payment of any principal
of the Securities of any series (or such lesser amount as may be provided for in
the Securities of such series) and accrued and unpaid interest, if any, thereon
shall be stayed, whether upon insolvency, bankruptcy or reorganization of the
Company or any other Person or otherwise, all such amounts shall nonetheless be
payable by the Guarantors, jointly and severally, immediately upon demand by the
Trustee or the Holders of at least 25% of the Outstanding principal amount of
the Securities of such series.
Section 1612. Condition of the Company.
Each Guarantor acknowledges and agrees that it has the sole
responsibility for, and has adequate means of, obtaining from the Company such
information concerning the financial condition, business and operations of the
Company as such Guarantor requires, and that neither the Trustee nor any Holder
has any duty, and such Guarantor is not relying on the Trustee or any Holder at
any time, to disclose to such Guarantor any information relating to the
business, operations or financial condition of the Company.
Section 1613. Release of Guarantors.
(1) For so long as the Company is a party to or otherwise bound by the
terms of the Credit Facility or any Substitute Credit Facility, if a Guarantor
is released from all of its guarantees under or pursuant to the Credit Facility
and all Substitute Credit Facilities, such Guarantor shall be automatically and
unconditionally released and discharged from all of its obligations under this
Indenture and its Guarantee without any further action required on the part of
the Company, the other Guarantors, the Trustee or any Holder; provided that all
guarantees by such Guarantor of any other Indebtedness of the Company and any
Subsidiaries are terminated at or prior to the time of such release.
(2) For so long as the Company is not a party to or bound by the terms
of the Credit Facility or any Substitute Credit Facility, if a Guarantor shall
cease to be a Domestic Significant
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Subsidiary, such Guarantor shall be automatically and unconditionally released
and discharged from all of its obligations under this Indenture and its
Guarantee without any further action required on the part of the Company, the
other Guarantors, the Trustee or any Holder; provided that all guarantees by
such Guarantor of any other Indebtedness of the Company and any Subsidiaries
(other than guarantees that constitute Guarantor Senior Indebtedness of such
Guarantor) are terminated at or prior to the time of such release.
(3) The Trustee shall deliver an appropriate instrument evidencing any
such release upon receipt of a written request by the Company accompanied by an
Officers' Certificate and an Opinion of Counsel, each to the effect that such
release has been effected in compliance with the provisions of this Indenture.
Section 1614. Additional Guarantors.
(1) For so long as the Company is a party to or bound by the terms of
the Credit Facility or any Substitute Credit Facility, if any Subsidiary that is
not then a Guarantor guarantees any indebtedness or other obligations of the
Company under the Credit Facility or any Substitute Credit Facility, then,
contemporaneously with or prior to the effectiveness of such guarantee, the
Company shall (i) execute and deliver, cause such Subsidiary and all other
Guarantors to execute and deliver and use its reasonable best efforts to cause
the Trustee to execute and deliver a supplemental indenture, in form
satisfactory to the Trustee, pursuant to which such Subsidiary shall become a
Guarantor under this Indenture and (ii) deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such supplemental
indenture complies with this Indenture. Thereafter, such Subsidiary shall be a
Guarantor for all purposes of this Indenture unless and until released from its
Guarantee pursuant to this Indenture.
(2) For so long as the Company is not a party to or bound by the terms
of the Credit Facility or any Substitute Credit Facility, if any Subsidiary that
is not a Guarantor either (a) is or becomes a Domestic Significant Subsidiary or
(b) guarantees any Subject Notes, then the Company shall (i) promptly execute
and deliver, cause such Subsidiary and all other Guarantors to execute and
deliver and use its reasonable best efforts to cause the Trustee to execute and
deliver a supplemental indenture, in form satisfactory to the Trustee, pursuant
to which such Subsidiary shall become a Guarantor under this Indenture and (ii)
deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such supplemental indenture complies with this Indenture.
Thereafter, such Subsidiary shall be a Guarantor for all purposes of the
Indenture unless and until released from its Guarantee pursuant to this
Indenture.
(3) Notwithstanding any other provision of this Indenture, the Company
will not cause or permit any of its Subsidiaries to guarantee any of the Subject
Notes unless such Subsidiary is either a Guarantor under this Indenture or,
contemporaneously with or prior to the effectiveness of such Subsidiary's
guarantee of such Subject Notes, (i) such Subsidiary, the Company and all other
Guarantors execute and deliver a supplemental indenture, in form satisfactory to
the Trustee, pursuant to which such Subsidiary shall become a Guarantor under
this Indenture (in which case the Company shall use its reasonable best efforts
to cause the Trustee to execute and deliver such supplemental indenture) and
(ii) the Company delivers to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such supplemental
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indenture complies with this Indenture. Thereafter, such Subsidiary shall be a
Guarantor for all purposes of this Indenture unless and until released from its
Guarantee pursuant to this Indenture.
Section 1615. Definition of "guarantee".
As used in Sections 1613 and 1614, the term "guarantee" (but not the
term "Guarantee") means, with respect to any Person, any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person including, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person to purchase or pay principal of or interest on (or advance or supply
funds or pledge assets for the purchase or payment of or payment of interest on)
Indebtedness of such other Person (whether by agreement to provide additional
capital or to maintain financial condition or other similar agreement), and such
term, when used as a verb in Section 1613 or 1614, shall have a correlative
meaning.
Section 1616. Evidence of Guarantees.
Each Guarantor hereby agrees that its execution and delivery of this
Indenture or any supplemental indenture pursuant to Section 1614 hereof shall
evidence its Guarantee set forth in Section 1601 without the need for any
further notation on any Securities or Coupons, and further agrees that its
Guarantee set forth in this Section 1601 shall remain in full force and effect
notwithstanding any failure to include or endorse on any Security or Coupon a
notation relating to such Guarantee.
ARTICLE SEVENTEEN
SUBORDINATION
Section 1701. Securities and Coupons Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of a Security or
Coupon by such Holder's acceptance thereof likewise covenants and agrees, that,
to the extent and in the manner hereinafter set forth in this Article Seventeen,
the indebtedness represented by the Securities and any Coupons and the payment
of the principal of and interest on, or any other amount owing in respect of
each and all of the Securities and of any Coupons is hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Laws, whether or not the
payment of such interest is permitted by law) or accrued original issue discount
on and other amounts due on or in connection with any Debt incurred, assumed or
guaranteed by the Company whether outstanding on the date of this Indenture or
thereafter incurred, assumed or guaranteed and all renewals, extensions and
refundings of any such Debt; provided, however, that the following will not
constitute Senior Indebtedness:
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(a) any Debt as to which, in the instrument creating the same
or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such Debt is subordinate in right of payment
to all other Debt of the Company not expressly subordinated to such
Debt;
(b) any Debt which by its terms refers explicitly to the
Securities and states that such Debt shall not be senior in right of
payment to the Securities;
(c) any Debt of the Company in respect of the Securities;
(d) any Debt of the Company to any Subsidiary of the Company;
(e) any Debt of the Company to any joint venture or
partnership, which joint venture or partnership is required, under
generally accepted accounting principles, to be consolidated in the
Company's consolidated financial statements; and
(f) any Debt of the Company which by its terms ranks pari
passu with or subordinate to the Securities.
Section 1702. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of (a) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith,
relative to the Company or to its creditors, as such, or to its assets, or (b)
any liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in such
event;
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness, or provision shall be made for such
payment in cash, before the Holders of the Securities or Coupons are
entitled to receive any payment on account of the principal of or
interest on or any other amount owing in respect of the Securities and
any Coupons; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, by
set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article Seventeen, including
any such payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company being
subordinated to the payment of the Securities or Coupons, shall be
paid, to the extent permitted by law, by the liquidating trustee or
agent or other Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of, and premium, if any,
and interest on the Senior Indebtedness held or represented by each, to
the extent necessary to
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make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders
of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 1702, the Trustee or the Holder of any Security or Coupon shall receive
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Debt of the Company being subordinated to the payment of the Securities or
Coupons, before all Senior Indebtedness is paid in full or payment thereof
provided for, then and in such event such payment or distribution shall, to the
extent permitted by law, be held in trust for the benefit of and paid over or
delivered forthwith to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any such Senior Indebtedness
have been issued for application to the payment of all Senior Indebtedness
remaining unpaid in the manner provided in clause (2) of the immediately
preceding paragraph, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
For purposes of this Article Seventeen only, the words "cash, property
or securities" shall not be deemed to include shares of capital stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinated, at least to the extent provided in this Article
Seventeen with respect to the Securities and Coupons, to the payment of all
Senior Indebtedness which may at the time be outstanding; provided, however,
that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment, including without
limitation, such rights being impaired within the meaning of Section 1124 of
Title 11 of the United States Code, or any impairment of the right to receive
interest accruing during the pendency of a bankruptcy or insolvency proceeding,
including proceedings under Title 11 of the United States Code.
The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its assets
to another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshalling of assets and liabilities of the
Company for the purposes of this Section 1702 if the corporation or Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer all or substantially all the assets of
the Company, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article Eight.
Section 1703. Acceleration of Securities.
In the event that any Securities shall have been accelerated and
declared due and payable pursuant to Section 502, then and in such event the
Company shall promptly notify holders of Senior Indebtedness of such
acceleration. The Company may not pay or acquire the Securities
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until 135 days have passed after such acceleration occurs and may thereafter pay
or acquire the Securities only if this Article Seventeen permits the payment or
acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Securities prohibited by
the foregoing provisions of this Section 1703, then and in such event such
payment shall, to the extent permitted by law, be held in trust for the benefit
of and be paid over and delivered forthwith to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any such
Senior Indebtedness may have been issued.
The provisions of this Section 1703 shall not apply to any payment with
respect to which Section 1702 would be applicable.
Section 1704. Default on Senior Indebtedness.
The Company may not make any payment of the principal of or interest on
or any other amount owing in respect of the Securities or any Coupons and may
not acquire any Securities or Coupons for cash or property if:
(1) a default on Senior Indebtedness occurs and is continuing
that permits holders of such Senior Indebtedness to accelerate the
maturity thereof; and
(2) unless such default relates to a failure by the Company to
make any payment in respect of such Senior Indebtedness when due or
within any applicable grace period (a "Payment Default"), such default
is either the subject of judicial proceedings or the Company receives
notice of the default. If the Company receives any such notice, then a
similar notice received within nine months thereafter relating to the
same default on the same issue of Senior Indebtedness shall not be
effective for purposes of this Section 1704.
The Company may resume payments on the Securities and any Coupons and
may acquire Securities or Coupons if and when:
(A) (i) 135 days pass after, in the case of a Payment Default,
the later of the date such payment was due and the expiration of any
applicable grace period for such payment or, in the case of any other
such default, the date the related judicial proceedings commence or
that notice of such default is given to the Company, as the case may
be, and (ii) the Senior Indebtedness in respect of which such default
exists has not been declared due and payable in its entirety within
such 135 day period or, if declared due and payable, such declaration
has been rescinded, waived or annulled; or
(B) the default with respect to the Senior Indebtedness is
cured or waived; and this Article Seventeen otherwise permits the
payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security or Coupon
prohibited by the foregoing provisions of this Section 1704, then and in such
event such payment shall, to the extent permitted by law, be held in trust for
the benefit of and be paid over and delivered forthwith to the holders of the
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Senior Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing such
Senior Indebtedness may have been issued.
The provisions of this Section 1704 shall not apply to any payment with
respect to which Section 1702 would be applicable.
Section 1705. Payment Permitted if No Default.
Nothing contained in this Article Seventeen or elsewhere in this
Indenture or in any of the Securities or Coupons shall prevent (a) the Company,
at any time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of the Company referred to in
Section 1702 or under the conditions described in Section 1703 or 1704, from
making payments at any time of the principal of or interest on the Securities or
Coupons, or (b) the application by the Trustee of any money deposited with it
hereunder to the payment of or on account of the principal of or interest on the
Securities or Coupons if the Trustee did not have, at the time provided in the
proviso to the first paragraph of Section 1710, notice that such payment would
have been prohibited by the provisions of this Article Seventeen.
Section 1706. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities or any Coupons shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article Seventeen to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities applicable to the Senior Indebtedness until the
principal of or interest on the Securities or any Coupons shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee would be entitled except for the provisions of
this Article Seventeen, and no payments pursuant to the provisions of this
Article Seventeen to the Company or to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities or Coupons, be deemed to be a payment or distribution by the Company
to or on account of the Senior Indebtedness.
Section 1707. Provisions Solely to Define Relative Rights.
The provisions of this Article Seventeen are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities
or Coupons, on one hand, and the holders of Senior Indebtedness, on the other
hand. Nothing contained in this Article Seventeen or elsewhere in this Indenture
or in the Securities or Coupons is intended to or shall
(a) impair, as between the Company and the Holders of the
Securities or Coupons, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities or Coupons
the principal of and interest on the Securities or Coupons as and when
the same shall become due and payable in accordance with the terms of
the Securities and this Indenture and which, subject to the rights
under this
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Article Seventeen of the holders of Senior Indebtedness, is intended to
rank equally with all other general obligations of the Company, or
(b) affect the relative rights against the Company of the
Holders of the Securities or Coupons and creditors of the Company other
than holders of Senior Indebtedness, or
(c) prevent the Trustee or the Holder of any Security or
Coupon from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any,
under this Article Seventeen of the holders of Senior Indebtedness to
receive cash, property or securities otherwise payable or deliverable
to the Trustee or such Holder.
Section 1708. Trustee to Effectuate Subordination.
Each Holder of a Security or Coupon by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Seventeen and appoints the Trustee such Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper claim or
proof of debt in connection with any insolvency or bankruptcy case or proceeding
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith relative to the Company in proper form within
30 days prior to the expiration of the time to file such claim or proof of debt,
then the holders of the Senior Indebtedness are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Securities or Coupons.
Section 1709. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of, or notice to, the Trustee or the Holders of the
Securities or Coupons, without incurring responsibility to the Holders of the
Securities or Coupons and without impairing or releasing the subordination
provided in this Article Seventeen or the obligations hereunder of the Holders
of the Securities or Coupons to the holders of Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise dispose of any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the
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collection of Senior Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Notwithstanding the payment in full of all Senior Indebtedness, the
provisions of this Article Seventeen shall be reinstated and revived, and the
enforceability of such provisions shall continue, in each case to the extent
permitted by law, with respect to (and only with respect to) any amount of
Senior Indebtedness which the Company shall have repaid to the holders thereof
(or to their representative or the trustee under the indenture under which the
instruments evidencing such Senior Indebtedness shall have been issued)
following a demand for such repayment by such holders (or representative or
trustee) made pursuant to provisions set forth in the instrument evidencing such
Senior Indebtedness or under which such Senior Indebtedness shall have been
issued, which provisions entitle such holders (or such representative or
trustee) to demand such repayment upon the occurrence of a Change of Control (as
defined in the Officers' Certificate dated January 27, 2003, establishing the
form and terms of the Company's 7 3/4% Senior Subordinated Notes due 2010
pursuant to the Senior Subordinated Debt Indenture dated as of November 19,
1996, between the Company and SunTrust Bank, Atlanta) or other substantially
similar event with respect to the Company specified therein, if such amount
thereafter must be restored or returned by such holders of Senior Indebtedness
(or such representative or trustee) because it constitutes a voidable preference
under Section 547 of Title 11 of the United States Code (or any successor
provision thereto) or under any similar provision of any other applicable
Bankruptcy Law or a fraudulent transfer under any applicable law regarding
fraudulent transfers.
Section 1710. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities or Coupons. Failure to give such notice
shall not affect the subordination of the Securities or Coupons to Senior
Indebtedness. Notwithstanding the provisions of this Article Seventeen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities or Coupons, unless and
until the Trustee shall have received written notice thereof in the manner
provided in Section 105 from the Company or a holder of Senior Indebtedness or
from any trustee or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if a Responsible Officer of the Trustee shall not have received, at least
three Business Days prior to the date upon which by the terms hereof any such
money may become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Security or Coupon), the notice
with respect to such money provided for in this Section 1710, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee or agent on behalf
of such holder) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any
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payment or distribution pursuant to this Article Seventeen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
Seventeen, and if such evidence is not furnished, the Trustee may defer any
payment which it may be required to make for the benefit of such Person pursuant
to the terms of this Indenture pending judicial determination as to the right of
such Person to receive such payment.
Section 1711. Reliance on Judicial Order or Certificate of Liquidation
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article Seventeen, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities or Coupons shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities or
Coupons, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Seventeen.
Section 1712. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and not be liable to any such holders if the
Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or Coupons or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article Seventeen or otherwise. The Trustee shall not be charged
with knowledge of the existence of Senior Indebtedness or of any facts that
would prohibit any payment hereunder unless a Responsible Officer of the Trustee
shall have received written notice to that effect in the manner provided in
Section 105. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Seventeen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
Section 1713. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Seventeen with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
Nothing in this Article Seventeen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 606.
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Section 1714. Article Seventeen Applicable to Paying Agents.
In case at any time any paying agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Seventeen shall in such case (unless the context
otherwise requires) be construed as extending to and including such paying agent
within its meaning as fully for all intents and purposes as if such paying agent
were named in this Article Seventeen in addition to or in place of the Trustee;
provided, however, that Section 1710 and 1712 shall not apply to the Company or
any Subsidiary or Affiliate of the Company if it or such Subsidiary or Affiliate
acts as paying agent.
ARTICLE EIGHTEEN
SUBORDINATION OF GUARANTEES
Section 1801. Agreement to Subordinate.
Each Guarantor covenants and agrees, and each Holder of a Security or
Coupon, by such Holder's acceptance and ownership thereof and by such Holder's
acceptance of any benefits under any Guarantee likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
Eighteen, payment of any and all amounts by such Guarantor under its Guarantee
of the Securities and any Coupons appertaining thereto is hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Guarantor Senior Indebtedness of such Guarantor.
"Guarantor Senior Indebtedness" means, with respect to any Guarantor,
the principal of (and premium, if any) and unpaid interest (including interest
accruing after the filing of a petition initiating any proceeding pursuant to
any Bankruptcy Laws, whether or not the payment of such interest is permitted by
law) or accrued original issue discount on and other amounts due on or in
connection with any Debt incurred, assumed or guaranteed by such Guarantor
whether outstanding on the date of this Indenture or thereafter incurred,
assumed or guaranteed and all renewals, extensions and refundings of any such
Debt; provided, however, that the following will not constitute Guarantor Senior
Indebtedness of such Guarantor:
(a) any Debt of such Guarantor as to which, in the instrument
creating the same or evidencing the same or pursuant to which the same
is outstanding, it is expressly provided that such Debt is subordinate
in right of payment to all other Debt of such Guarantor not expressly
subordinated to such Debt;
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(b) any Debt of such Guarantor which by its terms refers
explicitly to the Guarantees of the Securities and states that such
Debt shall not be senior in right of payment to the Guarantees of the
Securities;
(c) all Guarantees of such Guarantor in respect of the
Securities;
(d) any Debt of such Guarantor to any Subsidiary of such
Guarantor or of the Company;
(e) any Debt of such Guarantor to any joint venture or
partnership, which joint venture or partnership is required, under
generally accepted accounting principles, to be consolidated in the
Company's or such Guarantor's consolidated financial statements; and
(f) any Debt of such Guarantor which by its terms ranks pari
passu with or subordinate to such Guarantor's Guarantees of the
Securities.
For purposes of the foregoing definition, it is hereby expressly agreed
and understood that all references to Debt of any Guarantor shall include all
obligations of such Guarantor as guarantor of any Debt of others and, without
limitation to the foregoing, any guarantee by such Guarantor of debt securities
issued by the Company under the Indenture dated January 28, 2004, among the
Company, the guarantors party thereto and SunTrust Bank or under the Senior
Subordinated Debt Indenture dated as of November 19, 1996, as amended and
supplemented by the First Supplemental Indenture dated as of December 18, 2003
and as the same may be further amended or supplemented from time to time, by and
between the Company, SunTrust Bank, as successor trustee, and the guarantors
referred to therein shall constitute Guarantor Senior Indebtedness of such
Guarantor.
Section 1802. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of a Guarantor in the event of (a) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith,
relative to such Guarantor or to its creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of such Guarantor, whether
voluntary or involuntary, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of such Guarantor, then and in
such event;
(1) the holders of the Guarantor Senior Indebtedness of such Guarantor
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of all such Guarantor Senior Indebtedness, or provision shall
be made for such payment in cash, before the Holders of the Securities or
Coupons are entitled to receive any payment under or with respect to such
Guarantor's Guarantee of the Securities and any Coupons; and (2) any payment or
distribution of assets of such Guarantor of any kind or character, whether in
cash, property or securities, by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions of this Article Eighteen,
including any such payment or distribution which may be payable or deliverable
by reason of the payment of any other Debt of such Guarantor being subordinated
to the payment of amounts due under such Guarantor's Guarantee, shall be paid,
to the extent permitted by law, by the liquidating trustee or agent or other
Person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of the
Guarantor Senior Indebtedness of such Guarantor or their representative or
representatives or to the trustee or
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trustees under any indenture under which any instruments evidencing any such
Guarantor Senior Indebtedness of such Guarantor may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the principal
of, and premium, if any, and interest on the Guarantor Senior Indebtedness of
such Guarantor held or represented by each, to the extent necessary to make
payment in full of all such Guarantor Senior Indebtedness of such Guarantor
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Guarantor Senior Indebtedness of such Guarantor.
In the event that, notwithstanding the foregoing provisions of this
Section 1802, the Trustee or the Holder of any Security or Coupon shall receive
any payment or distribution of assets of a Guarantor of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Debt of the Guarantor being subordinated to the payment of the amounts due
under such Guarantor's Guarantee, before all Guarantor Senior Indebtedness of
such Guarantor is paid in full or payment thereof provided for, then and in such
event such payment or distribution shall, to the extent permitted by law, be
held in trust for the benefit of and paid over or delivered forthwith to the
holders of Guarantor Senior Indebtedness of such Guarantor or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any such Guarantor Senior
Indebtedness have been issued for application to the payment of all Guarantor
Senior Indebtedness of such Guarantor remaining unpaid in the manner provided in
clause (2) of the immediately preceding paragraph, to the extent necessary to
pay all such Guarantor Senior Indebtedness of such Guarantor in full, after
giving effect to any concurrent payment or distribution to or for the holders of
Guarantor Senior Indebtedness of such Guarantor.
For purposes of this Article Eighteen only, the words "cash, property
or securities" shall not be deemed to include shares of capital stock of any
Guarantor as reorganized or readjusted, or securities of any Guarantor or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinated, at least to the extent provided in this
Article Eighteen with respect to the Guarantee of such Guarantor, to the payment
of all Guarantor Senior Indebtedness of such Guarantor which may at the time be
outstanding; provided, however, that (i) the Guarantor Senior Indebtedness of
such Guarantor is assumed by the new corporation, if any, resulting from any
such reorganization or readjustment, and (ii) the rights of the holders of any
Guarantor Senior Indebtedness of such Guarantor are not, without the consent of
such holders, altered by such reorganization or readjustment, including without
limitation, such rights being impaired within the meaning of Section 1124 of
Title 11 of the United States Code, or any impairment of the right to receive
interest accruing during the pendency of a bankruptcy or insolvency proceeding,
including proceedings under Title 11 of the United States Code.
The consolidation of any Guarantor with, or the merger of any Guarantor
into, another corporation or the liquidation or dissolution of any Guarantor
following the conveyance or transfer of all or substantially all of its assets
to another Person shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of such Guarantor for the purposes of this Section 1802 if the
corporation or Person formed by such consolidation or into which such Guarantor
is merged or the Person which acquires by conveyance or transfer all or
substantially all the assets of such Guarantor, as
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the case may be, shall, as a part of such consolidation, merger, conveyance or
transfer, and if required by Section 1614 of this Indenture, become a Guarantor
in accordance with the applicable provisions of Section 1614.
Section 1803. Acceleration of Securities.
In the event that any Securities shall have been accelerated and
declared due and payable pursuant to Section 502, no Guarantor may make any
payment under its Guarantee of the Securities or acquire any Securities until
135 days have passed after such acceleration occurs and may thereafter make
payments under its Guarantee of the Securities or acquire Securities only if
this Article Eighteen permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, a Guarantor shall
make any payment to the Trustee or the Holder of any Securities prohibited by
the foregoing provisions of this Section 1803, then and in such event such
payment shall, to the extent permitted by law, be held in trust for the benefit
of and be paid over and delivered forthwith to the holders of Guarantor Senior
Indebtedness of such Guarantor or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing the Guarantor Senior Indebtedness of such Guarantor may have been
issued.
The provisions of this Section 1803 shall not apply to any payment with
respect to which Section 1802 would be applicable.
Section 1804. Default on Guarantor Senior Indebtedness.
A Guarantor may not make any payment under its Guarantee of the
Securities or any Coupons and may not acquire any Securities or any Coupons for
cash or property if:
(1) a default on Guarantor Senior Indebtedness of such Guarantor or
Senior Indebtedness of the Company occurs and is continuing that permits holders
of such Guarantor Senior Indebtedness or such Senior Indebtedness, as the case
may be, to accelerate the maturity thereof; and
(2) unless such default relates to a failure by such Guarantor or the
Company to make any payment in respect of any Guarantor Senior Indebtedness of
such Guarantor or any Senior Indebtedness of the Company, respectively, when due
or within any applicable grace period (a "Payment Default"), such default is
either the subject of judicial proceedings or such Guarantor or the Company
receives notice of the default. If such Guarantor or the Company receives any
such notice, then a similar notice received within nine months thereafter
relating to the same default on the same issue of Guarantor Senior Indebtedness
of such Guarantor or Senior Indebtedness of the Company, as the case may be,
shall not be effective for purposes of this Section 1804.
A Guarantor may resume payments under its Guarantee and may acquire
Securities or Coupons if and when:
(A) (i) 135 days pass after, in the case of a Payment Default,
the later of the date such payment was due and the expiration of any
applicable grace period for such
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payment or, in the case of any other such default, the date the related
judicial proceedings commence or that notice of such default is given
to such Guarantor or the Company, as the case may be, and (ii) the
Guarantor Senior Indebtedness of such Guarantor or the Senior
Indebtedness of the Company, as the case may be, in respect of which
such default exists has not been declared due and payable in its
entirety within such 135 day period or, if declared due and payable,
such declaration has been rescinded, waived or annulled; or
(B) the default with respect to the Guarantor Senior
Indebtedness of such Guarantor or the Senior Indebtedness of the
Company, as the case may be, is cured or waived; and this Article
Eighteen otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, any Guarantor shall
make any payment to the Trustee or the Holder of any Security or Coupon
prohibited by the foregoing provisions of this Section 1804, then and in such
event such payment shall, to the extent permitted by law, be held in trust for
the benefit of and be paid over and delivered forthwith to the holders of the
Guarantor Senior Indebtedness of such Guarantor or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing such Guarantor Senior Indebtedness may have been
issued.
The provisions of this Section 1804 shall not apply to any payment with
respect to which Section 1802 would be applicable.
Without limiting the effect of this Section 1804, no Guarantor shall
make any payment under its Guarantee during any period when the Company would be
prohibited from making payments on the Securities or any Coupons pursuant to
Section 1704 of this Indenture.
Section 1805. Payment Permitted if No Default.
Nothing contained in this Article Eighteen or elsewhere in this
Indenture or in any of the Securities or Coupons shall prevent (a) any
Guarantor, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of such Guarantor
referred to in Section 1802 or under the conditions described in Section 1803 or
1804, from making payments at any time under its Guarantee, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of such Guarantee if the Trustee did not have, at the
time provided in the proviso to the first paragraph of Section 1810, written
notice that such payment would have been prohibited by the provisions of this
Article Eighteen.
Section 1806. Subrogation.
Subject to the payment in full of all Guarantor Senior Indebtedness of
any Guarantor, the Holders of the Securities or any Coupons shall be subrogated,
to the extent of the payments or distributions made to the holders of the
Guarantor Senior Indebtedness of such Guarantor pursuant to the provisions of
this Article Eighteen, to the rights of the holders of such Guarantor Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to such Guarantor Senior Indebtedness until the principal
of or interest on the Securities or any Coupons shall be paid in full. For
purposes of such subrogation, no payments
105
or distributions to the holders of any Guarantor Senior Indebtedness of any
Guarantor of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article Eighteen, and no payments pursuant to the provisions of this Article
Eighteen to any Guarantor or to the holders any Guarantor Senior Indebtedness of
such Guarantor by Holders of the Securities or the Trustee, shall, as between
such Guarantor, its creditors other than holders of Guarantor Senior
Indebtedness of such Guarantor and the Holders of the Securities or Coupons, be
deemed to be a payment or distribution by such Guarantor to or on account of the
Guarantor Senior Indebtedness of such Guarantor.
Section 1807. Provisions Solely to Define Relative Rights.
The provisions of this Article Eighteen are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities or
Coupons, on one hand, and the holders of Guarantor Senior Indebtedness of the
respective Guarantors, on the other hand. Nothing contained in this Article
Eighteen or elsewhere in this Indenture or in the Securities or Coupons or any
Guarantee is intended to or shall
(a) impair, as between any Guarantor and the Holders of the
Securities or Coupons, the obligation of such Guarantor, which is
absolute and unconditional, to make all payment due under its Guarantee
as and when the same shall become due and payable in accordance with
the terms of such Guarantee and this Indenture and which, subject to
the rights under this Article Eighteen of the holders of Guarantor
Senior Indebtedness of such Guarantor, is intended to rank equally with
all other general obligations of such Guarantor, or
(b) affect the relative rights against any Guarantor of the
Holders of the Securities or Coupons and creditors of such Guarantor
other than holders of Guarantor Senior Indebtedness of such Guarantor,
or
(c) prevent the Trustee or the Holder of any Security or
Coupon from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any,
under this Article Eighteen of the holders of Guarantor Senior
Indebtedness of any Guarantor to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
Section 1808. Trustee to Effectuate Subordination.
Each Holder of a Security or Coupon, by such Holder's acceptance and
ownership thereof and such Holder's acceptance of any benefits under the
Guarantees, authorizes and directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article Eighteen and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper claim or proof of debt in connection with any insolvency or bankruptcy
case or proceeding or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith relative to any Guarantor in
proper form within 30 days prior to the expiration of the time to file such
claim or proof of debt, then the holders of Guarantor Senior
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Indebtedness of such Guarantor are hereby authorized to file an appropriate
claim for and on behalf of the Holders of the Securities or Coupons.
Section 1809. No Waiver of Subordination Provisions.
No right of any present or future holder of any Guarantor Senior
Indebtedness of any Guarantor to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act on
the part of any Guarantor or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by any Guarantor with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of any Guarantor Senior Indebtedness of any Guarantor may, at any
time and from time to time, without the consent of, or notice to, the Trustee or
the Holders of the Securities or Coupons, without incurring responsibility to
the Holders of the Securities or Coupons and without impairing or releasing the
subordination provided in this Article Eighteen or the obligations hereunder of
the Holders of the Securities or Coupons to the holders of Guarantor Senior
Indebtedness of such Guarantor, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, any Guarantor Senior Indebtedness of such Guarantor, or otherwise
amend or supplement in any manner any Guarantor Senior Indebtedness of such
Guarantor or any instrument evidencing the same or any agreement under which
such Guarantor Senior Indebtedness is outstanding; (ii) sell, exchange, release
or otherwise dispose of any property pledged, mortgaged or otherwise securing
any Guarantor Senior Indebtedness of such Guarantor; (iii) release any Person
liable in any manner for the collection of any Guarantor Senior Indebtedness of
such Guarantor; and (iv) exercise or refrain from exercising any rights against
such Guarantor and any other Person.
Notwithstanding the payment in full of all Guarantor Senior
Indebtedness of any Guarantor, the provisions of this Article Eighteen shall be
reinstated and revived, and the enforceability of such provisions shall
continue, in each case to the extent permitted by law, with respect to (and only
with respect to) any amount of Guarantor Senior Indebtedness of any Guarantor
which such Guarantor shall have repaid to the holders thereof (or to their
representative or the trustee under the indenture under which the instruments
evidencing such Guarantor Senior Indebtedness shall have been issued) following
a demand for such repayment by such holders (or representative or trustee) made
pursuant to provisions set forth in the instrument evidencing such Guarantor
Senior Indebtedness or under which such Guarantor Senior Indebtedness shall have
been issued, which provisions entitle such holders (or such representative or
trustee) to demand such repayment upon the occurrence of a Change of Control (as
defined in the Officers' Certificate dated January 27, 2003, establishing the
form and terms of the Company's 7 3/4% Senior Subordinated Notes due 2010
pursuant to the Senior Subordinated Debt Indenture dated as of November 19,
1996, between the Company and SunTrust Bank, Atlanta) or other substantially
similar event with respect to the Company specified therein, if such amount
thereafter must be restored or returned by such holders of such Guarantor Senior
Indebtedness (or such representative or trustee) because it constitutes a
voidable preference under Section 547 of Title 11 of the United States Code (or
any successor provision thereto) or under any similar provision of any other
applicable Bankruptcy Law or a fraudulent transfer under any applicable law
regarding fraudulent transfers.
107
Section 1810. Notice to Trustee.
Each Guarantor shall give prompt written notice to the Trustee of any
fact known to such Guarantor which would prohibit the making of any payment to
or by the Trustee in respect of such Guarantor's Guarantee. Failure to give such
notice shall not affect the subordination of such Guarantor's Guarantee to any
Guarantor Senior Indebtedness of such Guarantor. Notwithstanding the provisions
of this Article Eighteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Guarantee of any Guarantor, unless and until the Trustee shall have received
written notice thereof in the manner provided in Section 105 from a Guarantor,
the Company or a holder of Guarantor Senior Indebtedness of a Guarantor or from
any trustee or agent therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601, shall be entitled
in all respects to assume that no such facts exist; provided, however, that if a
Responsible Officer of the Trustee shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of any Guaranteed Obligations), the notice with respect to such money provided
for in this Section 1810, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Guarantor Senior Indebtedness of any Guarantor (or a
trustee or agent on behalf of such holder) to establish that such notice has
been given by a holder of such Guarantor Senior Indebtedness (or a trustee or
agent on behalf of any such holder). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Guarantor Senior Indebtedness of any Guarantor to
participate in any payment or distribution pursuant to this Article Eighteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Guarantor Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Eighteen, and if such evidence is not
furnished, the Trustee may defer any payment which it may be required to make
for the benefit of such Person pursuant to the terms of this Indenture pending
judicial determination as to the right of such Person to receive such payment.
Section 1811. Reliance on Judicial Order or Certificate of Liquidation
Agent.
Upon any payment or distribution of assets of any Guarantor referred to
in this Article Eighteen, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities or Coupons shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of
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Securities or Coupons, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Guarantor Senior
Indebtedness of such Guarantor and other indebtedness of such Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Eighteen.
Section 1812. Trustee Not Fiduciary for Holders of Guarantor Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness of any Guarantor and not be liable to
any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Securities or Coupons or to any Guarantor or to any
other Person cash, property or securities to which any holders of Guarantor
Senior Indebtedness of any Guarantor shall be entitled by virtue of this Article
Eighteen or otherwise. The Trustee shall not be charged with knowledge of the
existence of Guarantor Senior Indebtedness of any Guarantor or of any facts that
would prohibit any payment pursuant to the Guarantee of any Guarantor unless a
Responsible Officer of the Trustee shall have received written notice to that
effect in the manner provided in Section 105. With respect to the holders of
Guarantor Senior Indebtedness of any Guarantor, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article Eighteen and no implied covenants or
obligations with respect to holders of Guarantor Senior Indebtedness of any
Guarantor shall be read into this Indenture against the Trustee.
Section 1813. Rights of Trustee as Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Eighteen with respect to any Guarantor Senior
Indebtedness of any Guarantor which may at any time be held by it, to the same
extent as any other holder of such Guarantor Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Eighteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 606.
Section 1814. Article Eighteen Applicable to Paying Agents.
In case at any time any paying agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Eighteen shall in such case (unless the context
otherwise requires) be construed as extending to and including such paying agent
within its meaning as fully for all intents and purposes as if such paying agent
were named in this Article Eighteen in addition to or in place of the Trustee;
provided, however, that Section 1810 and 1812 shall not apply to the Company,
any Guarantor or any Subsidiary or Affiliate of the Company or any Guarantor if
the Company or such Guarantor or such Subsidiary or Affiliate acts as paying
agent.
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* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[Signature pages follow.]
110
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
COMPANY: KB HOME
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
GUARANTORS: KB HOME PHOENIX INC., an Arizona corporation
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
KB HOME COASTAL INC., a California
corporation
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
KB HOME NORTH BAY INC., a California
corporation
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
KB HOME SOUTH BAY INC., a California
corporation
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
KB HOME GREATER LOS ANGELES INC., a
California corporation
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
KB HOME COLORADO INC., a Colorado corporation
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
KB HOME NEVADA INC., a Nevada corporation
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
KB HOME LONE STAR LP, a Texas limited
partnership
By: KBSA, Inc., a Texas corporation,
Its general partner
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
TRUSTEE: [______________],
as Trustee
By: ________________________________________
Name:
Title:
[SEAL]
Attest:
____________________________
Name:
Title:
